Although we face serious challenges not seen in more than one hundred years, we, as citizens, must earnestly reject the urge to surrender important rights under our Federal and State Constitutions.
On April 6, 2020, our California Chief Justice issued the most recent in a series of emergency orders in the wake of the global pandemic. This order, which sets $0 bail for most misdemeanors and a large number of “non-violent” felonies, while well intended, has the practical effect of allowing criminals to victimize our citizens and communities with impunity. It robs our law enforcement of the ability to arrest and hold people who have committed the following crimes: child abuse and endangerment, trafficking of heroin and methamphetamine to our youth, physical or financial abuse of an elder adult, abuse of a dependent adult, human trafficking, fraud and embezzlement, obstructing or delaying a public health emergency worker, auto-theft, burglary, to name a few. This emergency order is bad policy and bad news for the law-abiding people of Colusa County who depend on our law enforcement and court system for upholding the rule of law and public safety because it will certainly lead to more crime.
One week before the zero bail order, Chief Justice Tani G. Cantil-Sakauye stated firmly, “No need and no right will be overlooked” by the Court during the current crisis. However, this new emergency zero bail order that mandates $0 bail for all misdemeanor and felony offenses, with the exception of only certain listed offenses, overlooks the numerous enumerated rights of crime victims that are expressly provided by Article 1, Section 28 of the California Constitution.
While the genuine intent behind the adoption of the emergency zero bail schedule is the health and safety of incarcerated individuals, its implementation as written will greatly increase the risk of harm to many in Colusa County who are more vulnerable now than before. As an example, children, the disabled, or elderly adults will be at greater risk of harm if their abusers are allowed to be released from custody on zero bail and a court date extended for months down the road.
To date, there have been no cases of coronavirus within our jail inmate population. Moreover, Sheriff Garofalo is prepared with a plan and resources to isolate and treat any inmate for COVID exposure. Opening the jail doors for those awaiting trial is premature and may actually increase the risk of their exposure to COVID-19 by putting them in the community.
In addition to the crimes above, those who are arrested for crimes such as drug trafficking, theft, and fraud will be empowered to commit the same crimes over and over because the zero bail order mandates zero bail on each arrest. These individuals who have been arrested on probable cause will now be released to possibly repeat their crime in the community where most Colusans are doing their best to stay safe and comply with the emergency health orders.
The ultimate irony is in the area of enforcement of the April 10, 2020 Colusa Public Health Officer’s shelter-in-place/stay at home order. A violation of that Order is a misdemeanor that is not excepted from zero bail. A COVID-19 positive individual can willfully disobey this Order repeatedly and merely be released on zero bail and given a citation to appear in Court months later. The law must have enforcement mechanisms – to protect everyone – in the event some do not voluntarily comply.
Finally, and perhaps most importantly, it is my belief that the emergency zero bail order expressly violates several enumerated rights granted by the California Constitution.
Article 1, Section 28 of the California Constitution is known as “Marsy’s Rights.” The section includes a list of enumerated and personally enforceable rights. Among them, several that are impacted by this zero bail order are:
“To be reasonably protected from the defendant and persons acting on behalf of the defendant”;
“To have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant”; “To be heard, upon request, at any proceeding, … involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue”; “To be informed, … of, the scheduled release date of the defendant, and the release of … the defendant from custody”.
Safeguarding Constitutional protections for victims, and the general public, is paramount for public safety, especially during this California health emergency. Cal. Const. Art. 1, Section 28 of the California Constitution includes an additional right with respect to setting bail as follows: Public Safety Bail. A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations. Cal. Const. Art. 1, Sec. 28 (f) (3). [Emphasis added.]
During this health emergency, all people in our communities are more vulnerable. Limiting crime victims or the People’s representative, the District Attorney, from the opportunity to oppose the release of an individual arrested for crimes impacting public safety, deprives victims and the community of the Constitutional protections granted to all Californians. While the District Attorney can still request an increase in bail in individual cases, that assumes either that an arrestee remains in custody until his arraignment, or the District Attorney is aware of unique facts regarding a suspect at the very time of his arrest. How often will that happen with zero bail? A first appearance in court by a suspect will become the exception, not the rule during this era of zero bail. The Chief Justice’s zero bail order, while well intended, creates more problems than it solves.