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In April 2020, a growing number of COVID-19 cases pushed the state court system to lower bail to $0 for most misdemeanor and lower-level felony offenses. The emergency bail schedule, the list setting bail at nothing for most types of crimes, was intended to help reduce the number of people being booked into county jails and thereby prevent the virus that causes COVID-19 from harming detainees and jail staff.
It was also a defense against bringing coronavirus back into the community by stopping the flow of people arrested for minor offenses entering and exiting jails after arraignment or posting bail.
And it appeared to have helped in the high-risk settings. Now two years after the California Judicial Council’s order setting emergency bail, which came weeks after Gov. Gavin Newsom directed the public to stay home, the emergency bail schedule is credited with avoiding a large number of COVID-19 related deaths in California county jails.
Aside from the state prison system, local lockdown facilities in California did not suffer the same fate as jails in other parts of the nation. For example, in Cook County in Illinois a study linked 15.7% of Illinois’ coronavirus cases to people cycling through the county’s jail. Santa Rita Jail, Alameda County’s sprawling lockdown facility in Dublin, has not had a coronavirus-related death and only about 1,880 cases, sheriff’s Lt. Ray Kelly said.
“It seems to me, to the extent that you weren’t adding fuel to the fire, adding people into high transmission areas like jail, did to a certain extent decrease the burden of disease in the community,” said George Rutherford, an infectious disease expert at UCSF. “But you’d have to have a formal study to say that in fact was true.”
However, any success zero-dollar bail may have had inside jails has lived in the shadow of what law enforcement officials say it has done to the streets. Police leaders from Los Angeles to Oakland have blamed the pandemic-era court system for rising violent crime rates and large-scale retail thefts. According to police, low to no bail sent a message that people who break the law won’t be held accountable.
In April 2022 after a violent week that saw four homicides in four days, including the death of a 15-year-old girl, Oakland police Chief LeRonne Armstrong pleaded with Alameda County Superior Court to return to the pre-pandemic bail schedule, which required payment of anywhere from a few thousands dollars for an offense like petty theft to $250,000 for felonies like rape or millions of dollars for large-scale drug trafficking.
“The judges in Alameda County have not been holding people accountable for committing violent crimes in the city of Oakland,” Armstrong said at a press conference. “Far too many people have been let out of custody after being caught with firearms. ‘Zero Bail’ has contributed to the increasing violent crime in Oakland. And it has to stop.”
But connecting rising crime rates to lowered bail is a little more complex. Police have yet to show through a statistical analysis that there’s any connection between the two. And if there were a link, the harms of rising violent crime rates would have to be weighed against the public health goals that zero bail was intended to accomplish.
OPD: New bail schedule let armed individuals go free
Ordinarily, a person arrested for a criminal offense must post bail to be released from jail while they await trial. Most people post bail through a bail bondsman by paying roughly 10% of the bail amount. So if someone’s bail is set at $10,000 for brandishing a gun, they would pay the bondsman $1,000 and the bondsman would pay the court $10,000. Then the person would be released.
Under the zero-bail policy set by the state judicial council, a policymaking board of mostly judges, individuals facing low-level charges were released without having to pay. However, bail was kept for crimes of violence and violent threats. So someone arrested for a shooting, a robbery, a homicide, or a serious violent offense would be subject to the pre-pandemic bail amounts; in some cases, no bail at all before they saw a judge.
Prosecutors and Oakland police say there were unintended consequences because, in their view, the emergency bail schedule was too lenient on people arrested for possessing a firearm. Under the zero-bail policy, if an individual with a prior felony conviction was arrested on a gun charge, the old system would be applied. But if a person without a felony conviction was arrested for having a loaded firearm in their car or selling weapons, they would, absent other circumstances, be released under $0 bail.
Judges had discretion to hold a person at Santa Rita Jail and set bail at a higher amount than zero if the judge determined the person posed a risk to public safety, but police and prosecutors have argued in many cases people were released while the police department’s application to seek higher bail was still pending.
In a report presented to the City Council’s public safety committee last week, Assistant Chief Darren Allison and Lt. Anthony Tedesco told councilmembers that a person caught with a firearm or even a machine gun were eligible for zero-dollar bail and could be released shortly after arrest without seeing a judge.
This practice ended in March 2021, when the county superior court amended the bail schedule and broadened the exceptions to include all felony firearm possession crimes.
“This is something we worked with the DA’s office and local courts and we were able to have that changed and added quite a few of the firearm related offenses back into the schedule which was very helpful,” Tedesco said last week. “But there were several instances where subjects released on bail were arrested initially with firearms, released back into the community, and were able to commit acts of violence.”
Allison said OPD’s much-lauded Ceasefire program was also impacted. The violent crime reduction initiative targets the small percentage of gangs and groups who police say are involved in the majority of shootings and homicides in Oakland. Participation in Ceasefire’s “call-ins”—where police and community members meet with gang members to quash feuds and attempt to get individuals to put down guns—dropped from 80% to 40%, Allison said. Skipping a call-in can result in a probation violation that would land a person back in jail, but during the pandemic that only resulted in having to post $5,000 bail, creating less incentive for individuals to participate, Allison said.
Public defenders question OPD’s narrative on zero bail
Others have called into question whether zero-dollar bail was really a driving factor in rising crime rates. Stephanie Clark, a county deputy public defender working in the felony unit, noted that other U.S. cities that did not have emergency bail saw similar increases in violent crime.
“It really is true that it only applied to non-violent offenses,” Clark told The Oaklandside. “I understand OPD is concerned about simple firearm offenses. I understand that concern but any crime where any violence was alleged was not subject to the emergency bail schedule.”
Clark said there were “plenty” of instances where judges did hold someone at Santa Rita Jail, based on information provided by prosecutors and police that they would be a danger to the community if let out.
Clark also noted that bail doesn’t protect the public; it just makes it so people have to pay money to get out of jail.
She believes one of the reasons zero-dollar bail frustrated prosecutors is that having a defendant in custody makes it easier to “resolve cases quickly because people are incentivized to take a deal.” In other words, the ability to hold people in jail puts pressure on them to plead guilty or no contest to alleged crimes, rather than fight those charges.
“It seems this focus on this emergency bail schedule is really overblown,” she said. “I’ve heard of people getting out and reoffending and getting out and reoffending. That’s not true. This idea of jail being a revolving door isn’t true.”
People who reoffended weren’t eligible to be released a second time. “Maybe it happened once because someone missed something,” Clark said.
Councilmember Carroll Fife, who chairs the public safety committee, has also been skeptical. After an OPD captain linked crime trends to the new bail schedule at an April meeting, Fife requested that OPD produce a report backing up the claims.
At last week’s meeting, the department presented a report that included nine examples where OPD believed the system made the city less safe. In one instance, OPD said a person arrested twice for possessing and transporting firearms and released from jail both times in 2020 was put under police surveillance after their gun was linked to two homicides. Police observed the person shooting two people and arrested that person who is now in custody with two counts of attempted murder. As with the other examples presented by OPD, the department vaguely described the case, not disclosing names and other information.
In another case, “Subject C” was released on assault charges involving a complaint filed by his neighbor. After being released, the man returned to the East Oakland neighborhood the next day and killed his neighbor in May 2020. This appears to be a reference to Jamal Thomas, 43, who allegedly threw a brick at Miles Armstead, 44, outside Armstead’s home, and also broke windows at the house. Police arrested Thomas and requested $70,000 bail but he was released on $1 bail. Thomas is now in custody facing charges of murder and assault with a deadly weapon.
Other cases involved a person released for a robbery in Beverly Hills in August 2020 and later a search warrant executed by OPD found five guns in that person’s home; a homicide suspect who was released for carrying a loaded firearm in September 2020; a person arrested for burglary who was later arrested for an attempted homicide; and “Subject I”, who was arrested in October 2020 for homicide months after being released for possessing a gun. OPD cited other examples of people who posted higher amounts of bail without being evaluated by the county court.
The examples, while shocking, fall short of a statistical analysis needed to actually link crime rates to the emergency bail schedule, said Franklin E. Zimring, a professor of law at UC Berkeley.
“It should be filed under ‘special pleading,’ said Zimring, who reviewed OPD’s report. “What you need to profile [is] trends over time starting from about 2018.”
Alameda County Public Defender Brendon Woods said what isn’t being talked about enough is how reduced bail has potentially helped people from becoming financially unstable.
“They don’t talk about how when someone is in custody, who is presumed to be innocent, can lose their job, their home, custody of their child. It would be great if they did an analysis of people whose lives were improved by zero bail, who are able to retain their jobs, their housing and their kids” Woods said.
A push to return to pre-pandemic bail schedule
Earlier this year, around the time Chief Armstrong held a press conference about ending zero-bail, a campaign to do so was in the works. Mayor Libby Schaaf, District Attorney Nancy O’Malley, and representatives of business districts in Oakland and Berkeley recovering from large-scale retail thefts, wrote to Alameda County Superior Court Presiding Judge Charles Smiley calling for a return to the pre-pandemic schedule.
A memo sent from the DA’s Office to Smiley in March 2020 said “numerous defendants on felony probation or parole are given incorrect bail amounts” that aren’t reflective of their past crimes and that people arrested on theft related offenses “are immediately released into the community without any consequences for their violent and illegal conduct.”
The letter cited a case of a man on parole from state prison for a 2001 murder that was reduced to a manslaughter who in September 2021 fired more than 100 rounds at two people on 85th Avenue in Oakland, wounding the pair. The man then crashed head on into a patrol car while fleeing police. His bail was set at $130,000 for assault on a peace officer and $5,000 for a parole violation.
“Defendant’s bail was set before any consideration of his violent conduct or without any input from his parole agent, the District Attorney’s Office, or a judge,” the letter stated, noting he was ultimately arraigned and held in jail with bail set at $990,000.”
Schaaf in a two-page letter dated April 14, 2022, urged the court to adopt the bail modifications proposed by O’Malley. Her letter cited the 134 lives lost in 2021, the impact the pandemic had on Ceasefire, and repeat offenders.
“Working together, it’s the city’s hope that we can develop solutions to address repeat offenders engaged in violent crime and firearm related offenses,” Schaaf wrote. “One of the goals of Ceasefire is to reduce recidivism. With that said, Oakland is not interested in mass incarceration.
“A recent study showed that only .04% of the Oakland population is involved in gun violence. Of that small population, 84% of victims and suspects were known to the criminal justice system prior to their involvement in homicides. According to recent data, victims and suspects had been arrested an average of 9 times prior to a homicide incident, of the arrets about 5 involved felony offenses. The focus of our attention must be on the small population of violent, repeat offenders.”
Alameda courts rescinded the emergency temporary bail schedule at the end of April.
Since then, Lt. Tedesco said, “we’ve already seen a trend down of shooting in that period of time.”
Fife said the anecdotal evidence was not convincing. “I think they are throwing everything at the wall to see what sticks,” Fife said. “In all parts of California, [police] are saying the exact same talking points.”