If you’re accused of a crime, the Sixth Amendment says you’re guaranteed the right to “a speedy and public trial.” At a hastily called meeting over the weekend, the Judicial Council of California, which sets policy for state courts, approved emergency measures that temporarily take this right away.
Now, people who are arrested can be kept in jail for longer before they’re allowed to talk to a judge, enter a plea, contest their charges, request a trial, or leave. Previously, the “waiting period” before a person’s arraignment couldn’t be longer than 48 hours. Now, it can last up to seven days, not including weekends. The new rules will stay in place for 90 days after California lifts its COVID-19 emergency order.
Members of the Judicial Council of California say the decision will help unclog the enormous backlog of criminal cases underway before the pandemic. Courthouses across the state have mostly shut down to prevent transmission in crowded courtrooms, hallways and holding cells. The Alameda County Superior Court is closed to the public until at least April 7. Criminal hearings continue, but very slowly. The Judicial Council approved the new rules at an emergency meeting on Saturday after giving just two days of public notice, rather than the seven days normally required, and didn’t allow public comment during the virtual meeting.
“These are extraordinary times with an invisible biological threat moving amongst us,” said California Chief Justice Tani Cantil-Sakauye, head of the Judicial Council, during the meeting.
Those defending the accused see it differently.
The decision marks a “dark day for justice,” says Alameda County Public Defender Brendon Woods. “If we’re going to go down this road of denying people their speedy trial rights, then we should talk about releasing them on no-cash bail or some other form of release, such as electronic monitoring.”
Legal critics say the new rules could increase the risk of the coronavirus breaking out in California jails as it may contribute to the overcrowding that exists in some facilities.
“These rules will result in people being detained longer, increasing the risk that they will contract COVID-19,” wrote Jeffrey Selbin, a law professor at UC Berkeley, one of two dozen legal experts who shared concerns with the Council. “This is a matter of life and death.”
The Judicial Council’s new rules also make defendants wait longer for a preliminary hearing. Normally, that hearing has to happen within 10 days of an arrest. At the hearing, unless a prosecutor convinces a judge there is probable cause to move ahead with a trial, the defendant is released.
Under the temporary rules, prosecutors and courts now have up to 30 days to hold a preliminary hearing. The Judicial Council also extended the deadlines for misdemeanor trials from 30 to 60 days, and felony jury trials from 60 to 90 days.
Selbin said that due to the coronavirus crisis, the Judicial Council should speed the process up, not prolong it.
“The extensions that are proposed in the report today are in no way shape or form meant to be an opportunity to sit and wait,” said Marsha Slough, associate justice of the Fourth Appellate District Court of Appeal who is a member of the Judicial Council. “Rather, they are meant to be an opportunity to provide courts the authority to address arraignments and preliminary hearings as they are able to do so.”
The new timeline will disproportionately hurt lower-income people, said Kathleen Guneratne, a lawyer with the ACLU of Northern California. Typically, those who can’t afford to leave jail by making bail have had to wait up to two days before the chance to ask a judge for a lower bail, or to be released without bail. Under the new rules, detainees who can’t afford to pay will have to wait up to nine days.
Guneratne said the emergency measures run against several years of policy reforms by the Judicial Council and the state legislature to eliminate such disparities in the justice system.
Responding to criticisms, Judicial Council spokesperson Blaine Corren pointed out that earlier this month, Chief Justice Cantil-Sakauye asked California superior courts to consider lowering the cost of bail during the crisis, eliminating bail for low-level offenses and letting detainees with less than 60 days left to serve get out early.
Until Saturday’s vote, the response to the COVID-19 pandemic within California’s criminal justice system had largely been one of cooperation between traditionally adversarial parties. Prosecutors and sheriffs worked with defense attorneys to reduce the number of people awaiting trial or running out the last days of their sentences behind bars, where a COVID-19 outbreak could be devastating.
On March 13, Alameda County Sheriff Gregory Ahern asked local police not to lock up anyone with coronavirus symptoms, or anyone at high-risk for infection and instead to write them up and let them go.
The sheriff’s request seems to have made a difference. During the second week of March, according to county data, nearly 750 new inmates were booked into Santa Rita Jail. The week after, just 361 new inmates were booked.
Overall, the inmate population at Santa Rita Jail dropped by approximately 500 people in March, thanks to early releases of sentenced inmates and the release of many detainees whose trials had not yet begun.
“We’re doing everything we can to keep people from going into the system,” District Attorney Nancy O’Malley said Monday during a court hearing about conditions at Santa Rita.
Over the past two weeks in Alameda County, the number of felony cases filed by the district attorney dropped by 70%, and misdemeanors by 60%. O’Malley noted that her office notifies crime victims when inmates convicted in their case are released.
During Monday’s telephoned hearing, Alameda County attorneys gave updates on conditions inside the jail since the COVID-19 pandemic reached California.
As of Sunday, Santa Rita Jail’s population stands at just over 2,000 inmates. Attorneys said no Santa Rita inmate or deputy has tested positive for COVID-19 so far.
But 13 inmates at Santa Rita have been coded “red”— meaning they have symptoms similar to coronavirus, said Gregory Thomas, an attorney for the sheriff’s office and the county. All 13 inmates are awaiting test results and are being cared for in the jail’s outpatient housing unit, which is equipped with negative air-pressure rooms to prevent leaked contagions.
“Social distancing is not possible in a jail.” — Kara Janssen, attorney
Last week, a nurse who works at the jail did test positive after being examined at a testing site in Hayward. Some inmates who’ve had contact with the nurse have been quarantined. Thomas said the test’s accuracy is in question. For one thing, the Hayward testing site hasn’t been approved by the Centers for Disease Control. If a second test comes back negative, Santa Rita Jail will lift the inmate quarantine.
Over the weekend, jail staff removed metal from hundreds of N95 masks and distributed them to inmates who wanted them. It’s unclear how effective the masks are without the metal strips that allow them to be molded around a person’s nose.
Overall, the county and the sheriff’s office believe that Santa Rita is safe, said Thomas.
Attorneys representing inmates there disagree. “A jail is an inherently unsafe place for anyone to be at this point, including staff,” said San Francisco-based attorney Kara Janssen. “Social distancing is not possible in a jail.” In a court briefing, Janssen recommended that the jail release more detainees and increase COVID-19 testing to prevent an undetected outbreak.
This global crisis should lead to greater widespread effort to release more people from jail, said Alameda County Public Defender Brendon Woods, rather than restricting arrested people’s rights and prolonging the amount of time they wait behind bars. “If you’re going to take such extraordinary measures of denying people due process rights, then you also have to take the extraordinary measure of releasing them as well,” he said.