Los Angeles Prosecutors Discussed Loopholes In Coronavirus Zero-Bail Policy

In an effort to thin out jails where inmates have a high risk of contracting the coronavirus, Los Angeles County courts reduced bail for most misdemeanors and low-level felonies to $0. A few weeks later, California’s Judicial Council enacted a similar statewide rule.

LA County District Attorney Jackie Lacey has praised her county’s efforts to reduce the jail population and applauded the statewide rule, which allow for certain exceptions, including for people accused of DUIs and serious or violent felonies. But emails obtained by HuffPost show that her office has internally discussed ways to continue seeking old bail amounts in other scenarios as well, a move that could put more people in unnecessary danger of being exposed to the virus in jail.

Jails are among the most dangerous places to be during the COVID-19 pandemic. It is impossible for most prisoners to social distance, wash their hands frequently, and disinfect surfaces. Jail staffers and inmates leave and enter the facility frequently. Reducing the number of people in custody is the only way to mitigate the spread of the virus through jails, public health experts have warned. In LA County jails, at least 11 inmates have tested positive for COVID-19 and nearly 700 are quarantined. A member of the jail’s nursing staff who tested positive for the virus died earlier this month.

Although Lacey has publicly supported the emergency zero-bail rule, some members of her team have provided guidance that runs counter to the purpose of the policy.

On April 2 — after the LA Superior Court implemented its zero-bail rule but before the statewide move — Gina Satriano, a director in the district attorney’s office, wrote an email to several prosecutors explaining how deputy DAs should respond if law enforcement seeks to hold someone on a zero-bail offense.

The court believes officers are supposed to “cite and release” — effectively the same as giving a ticket to — anyone accused of such an offense and that “disregarding the zero bail is unlawful,” Satriano wrote.

But there was a loophole, she suggested. If law enforcement cited and released an individual, and later brought the case to the DA’s office to seek an arrest warrant, “we should use the old bail schedule that lists a dollar amount, otherwise no one would get arrested on that warrant,” Satriano wrote. “Keep in mind,” she added, “the court may still lower bail to zero.” (Read the email here.)

In other words, if law enforcement decided an individual who was cited and released should actually be jailed pretrial and asked prosecutors to seek an arrest warrant, the DA’s office would request the bail amount that would have applied before the emergency COVID-19 rule. An individual accused of an offense that is supposed to carry zero bail during the pandemic could end up facing bail they can’t afford and be stuck in jail waiting for the judge to lower the bail to zero. If the judge complied with the zero-bail rule, the defendant would get released — but only after facing an unnecessarily high risk of contracting the coronavirus in custody.

“The judiciary already accounted for traditional bail considerations like flight risk and public safety when ordering new $0 emergency bail. Prosecutors from around the state had the opportunity to comment and provide input before this order came out,” Nikhil Ramnaney, the president of the union that represents LA County public defenders, said in an interview after reviewing copies of the emails. He continued:

“Because they disagree with the breadth of this order, LA prosecutors have adopted a position that would lead to people being arrested while sheltering in place and force them to be placed in custody for up to seven days on offenses that have $0 bail. This conduct endangers public safety by increasing risk of infection to the community at large.”

The DA’s office disputes that the guidance from the April 2 email is meaningful. The scenario described in the email “was a hypothetical exercise in which a prosecutor sought direction if, in the unlikely situation, this particular scenario should occur in the future,” Ricardo Santiago, a spokesman for the district attorney’s office, wrote in an email. “We do not expect any law enforcement agency to cite and release an offender, and then present the same case for criminal filing before the offender is scheduled to return to court to face criminal charges.”

LA County Public Defender Ricardo García saw the email earlier this month and brought it to Lacey’s attention, he told HuffPost. Lacey assured García that the guidance in the email did not represent her position, he said. García added that he appreciates Lacey’s office cooperating in identifying individuals who can be released rather than having to litigate each case individually in court.

But on Monday, another member of the DA’s team provided guidance that appeared to undermine the zero-bail rule. Deputy District Attorney Belle Chen instructed prosecutors in an email to start identifying which of the more than 2,000 people incarcerated on nonserious, nonviolent charges qualified for zero bail under the new rule.

“Probably many of the cases involving drugs, theft, etc. will be more straightforward in deciding $0 bail,” Chen wrote. “BUT if you believe for the sake of public safety and [defendant’s] reappearance that $0 bail is NOT appropriate, we can still argue for a bail review hearing,” Chen continued.

Chen referenced an April 9 memo from retired Placer County Judge. J. Richard Couzens, who argued that courts can depart from the zero-bail rule to protect public safety. Although the Couzens memo is not legally binding, some prosecutors have referred to it to argue that implementation of the zero-bail rule is discretionary.

“I don’t know what authority they’re relying upon to circumvent the explicit goal of the law,” said Ramnaney of the public defenders union.

The April 13 email, according to Santiago, was an effort to make sure that violent criminals who do not qualify for zero bail under the new rule are not accidentally released because they are also facing nonviolent charges.

“Upon review, prosecutors have identified multiple-murder defendants awaiting trial and people facing more than one criminal case, with at least one charge that is violent or serious under the law and exempt from zero bail, whose names appeared on the list of non-serious/non-violent offenders,” Santiago wrote.

In that situation, the individual would not be eligible for zero bail because of the murder charge. Prosecutors would not need to argue for a bail review hearing.

“Whenever the LA DA’s office has attempted to institute a policy change or progressive legislation, Jackie Lacey has been ineffective in ensuring that it’s carried out consistently,” Ramnaney said. “She has allowed punitive cultures to fester in certain places.”

LA County has already released thousands of people from jail in response to the coronavirus crisis, a move supported by one of the county’s top law enforcement officials. Leaving the jail “fully populated” would have made it easier for COVID-19 “to sweep through the jail system and jeopardize everyone’s safety,” LA County Sheriff Alex Villanueva told Fox News.

UPDATE: 3:12 p.m. ET ― On Monday morning, after HuffPost contacted the district attorney’s office to request comment, Chief Deputy District Attorney Joseph Esposito sent a memo with the subject line: “EMERGENCY BAIL SCHEDULE — ZERO BAIL IS NOT DISCRETIONARY.”

The Judicial Council rule “states that ‘bail for all misdemeanors and felony offenses must be set at $0’ with the exception of ‘only’ 13 listed exceptions,” Esposito wrote in the memo (bold in the original). “It is the Office’s position that courts do not have discretion to set bail other than $0 for offenses that are not found in the 13 listed exceptions.”