(Todd Spitzer) – Presidential advisor Rahm Emanuel, speaking about the financial crisis in 2008, said, “You never want a serious crisis to go to waste … it’s an opportunity to do things that you think you could not do before.”
The California Judicial Council, a little-known state entity that controls the entire court system, decided to use the COVID-19 crisis to implement its views on pre-trial release. In doing so, its members put public safety at risk.
The council is chaired by the chief justice of the California Supreme Court and its membership is largely comprised of Superior Court judges and Appellate Court justices.
A two-year study by the council that suggested $0 bail and other pre-trial early-release measures inspired Senate Bill 10, which ended bail in California and replaced it with a risk-assessment system as recommended by the Judicial Council. An initiative to overturn this law has qualified for the November ballot. Voters will decide if ending bail makes common sense for public safety. We have a lot of examples why this is now highly questionable.
The Judicial Council unanimously adopted Emergency Rule 4, which sets bail at $0 for all crimes except for 13 categories of serious and/or violent crimes. The remaining crimes are eligible for $0 bail and inmates charged with those crimes are eligible for immediate release from jail.
Although the Judicial Council’s study recommended a pre-trial inmate risk assessment as critical for either early release or $0 bail, this risk assessment of danger to the community was left out of Rule 4. Jail capacity and social distancing were represented as the reasons to adopt the emergency measures; yet once those measures were achieved Rule 4 was crafted without a stop-gap to limit Rule 4’s use once those safe jail thresholds had been met.
Orange County Sheriff Don Barnes has taken proactive steps to protect the health and safety of jail staff including implementing all safety measures mandated by the Centers for Disease Control.
While the initial urgent need to reduce jail population was an important and necessary assertion, the Judicial Council unnecessarily and dangerously mixed its socially progressive goals of ending bail into these emergency rules.
That social agenda has exploited this pandemic as an excuse to empty jails and prisons across the nation in order to justify such measures as keeping with protection of the public. Rule 4’s misuse has exposed the ruse.
Here in Orange County, Commissioner Joseph Dane has given new meaning to early release. He often fails to properly consider the risk to public safety when ordering release, instead making a record totally relying on the pandemic and Rule 4 as his authority.
Commissioner Dane released seven convicted state parolee sexual predators who either cut off or tampered with their GPS devices, without imposing the mandatory 180 days in custody. One sex offender released re-offended within days, exposing himself to office workers. We all have reason to be concerned.
We’ve already seen it here in Orange County and not just with sex offenders. Commissioner Dane also recently released a third-striker career burglar on his “own recognizance” only to have him assault an Irvine police officer while committing another burglary just days later. Ventura County law enforcement leaders are so concerned that they sent an urgent letter to the chief justice imploring her to reverse these poorly thought-out orders.
We didn’t need an experiment to tell us what we already knew: when you let criminals out of jail, they will commit more crimes. You also didn’t need to tell us certain crimes would go down when burglars know people are sheltering at home and can watch over their property or pick up Amazon packages off their porch before thieves can steal it.
This November, California voters will have the opportunity to decide whether eliminating bail makes us safer. Certainly the Judicial Council has an unfair stake in the game and used it against us during this pandemic, given its driving force behind SB10 and conclusions that pre-trial incarceration is “unfair and unsafe” long before the coronavirus contagion.
While it is an opportunity to not let a serious crisis to go to waste, the judicial mandate is to weigh evidence, not pre-judge facts.
Todd Spitzer is the district attorney of Orange County. This column was originally published on May 16 by the Orange County Register.