09 Apr California Enacts Emergency Pretrial Release Without Bail For Nonviolent Offenders
California continues to lead the nation in enacting effective measures to slow the spread of the COVID-19 pandemic. This week, California authorities enacted sweeping emergency rules designed to release nonviolent offenders from pretrial detention without bail, reducing the risk and scale of jail outbreaks.
Under normal circumstances, California’s criminal courts set bail based on bail schedules set by each separate county. Bail is, in theory, designed to make sure a defendant appears for trial and to prevent them from posing a risk to the public during that pretrial phase. In reality, the schedules are often artificially high, and many defendants await trial in custody because their families cannot afford bail. During a pandemic, this can be deadly.
Fortunately, California’s leaders have responded. On March 27, 2020, Governor Gavin Newsom issued an order permitting California’s Judicial Council to enact emergency measures to prevent the spread of COVID-19 in the judicial system. On April 6, 2020, the Judicial Counsel enacted emergency rules, including a rule governing bail pending trial, Emergency Rule 4. Here’s what you need to know about Emergency Rule 4:
- How does the emergency rule impact bail? Emergency Rule 4 orders California’s counties to revise their bail schedules to set bail at $0 – that’s zero dollars – for all felonies or misdemeanors, except those set forth in exceptions to the rule. In other words, courts should release all defendants held before trial on no bail unless their case falls under an exception.
- What are the exceptions? Emergency Rule 4 requirement for no bail does not apply to a list of specified violent crimes and sex crimes:
- Crimes on California’s statutory list of “serious felonies,” which are all violent crimes or sex crimes or serious drug offenses, or on the list of “violent felonies.”
- Threats charged as felonies;
- Various sex offenses;
- When does Emergency Rule 4 take effect? Counties must put their new bail schedules in place by 5:00 p.m. on Monday, April 13, 2020. Many courts are already releasing defendants under Rule 4 in advance of that deadline.
- How long does Emergency Rule 4 last? The $0 bail under Emergency Rule 4 will sunset 90 days after the Governor declares the COVID-19 emergency over, or when the Judicial Council repeals it. It’s not yet clear what will happen then to defendants who have already been released on the $0 bail; the Judicial Council will probably pass new rules for courts to follow to review those releases and set new bail.
- What about defendants who fall into exceptions? Defendants who are accused of a violent crime or other crime covered by the exceptions to Emergency Rule 4 will still be subject to the old bail schedules, though counties are free to modify those schedules to reduce bail.
In short, as of April 13, 2020, defendants accused of nonviolent offenses not falling into the exceptions can expect to be released without bail until the end of this crisis. Defendants should consult their legal counsel to take advantage of the rule.
At Brown White & Osborn LLP, we’re keeping track of the almost daily measures passed to combat the COVID-19 pandemic, and we can help you apply them to your criminal or civil case.
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