California Attorneys for Criminal Justice Comments and Recommendations on Emergency Rul
Monday, April 6, 2020
California Attorneys for Criminal Justice
Comments and Recommendations on Emergency Rules 4, 5 and 7
Dear Council and Chief Justice,
As California’s association of criminal defense lawyers CACJ, its members, and their clients are stakeholders in the design and implementation of emergency rules to protect public safety and save lives during the COVID-19 pandemic. We are actively and directly involved in both criminal and juvenile delinquency proceedings.
Our previous correspondence has emphasized the critical need to reduce inmate populations in California’s jails and prisons to save lives. The March 20 recommendations from the Chief Justice to reduce the bail schedule for non-violent offenses was a step which raised our hopes for improved policies. But those recommendations have had little impact as individual counties struggle with access to accurate epidemiological information and varied local conditions. Although there have been relatively minor reductions in jail population, this has not been enough to significantly improve the risk to inmates, corrections employees, and the public.
CACJ is therefore very pleased with proposed Emergency Rules 4 & 5 submitted to the Judicial Council for consideration on April 6. We believe a statewide bail schedule is an appropriate tool to address the life-or-death conditions for pre-trial detainees in our jails. If populations are dramatically reduced it will also decrease the risk to jail staff and those remaining in custody.
There are significant collateral benefits of reducing inmate population as well. A defendant in custody should normally assert the right to a speedy preliminary hearing and trial. This is more true today since timely hearings could lead to early release from the dangerous custodial setting. After these defendants are
released they are in a position to waive time to relieve a great deal of the pressure for preliminary hearings, motions, and trials while the courts are in emergency mode.
For these reasons CACJ endorses the adoption of Emergency Rules 4 and 5, with the following comments and recommendations:
The statewide bail schedule is a critical first step in improving public safety. The April 10 deadline for implementation is an important factor in achieving a better outcome. There must be oversight of the counties to encourage full, timely, compliance;
The broad application to both misdemeanor and felony charges is critical to achieving the best outcome in reduced infections and deaths. But some of the exemptions will result in needless incarceration of individuals who pose no significant risk to cause harm. For example, first time violations of Vehicle Code §§23152 and 23153 with lower levels of intoxication, and violations of Penal Code §§ 69 and 166(c)(1) with no injury or minor injury. Local courts should be encouraged to reduce bail for these charges and other less serious examples of the exempt offenses;
The Rule does not address the bail setting for enhancements, such as a serious felony prior or gang involvement. Without guidance from the council we assume local courts will take the most restrictive view and impose high bail from the county schedule in cases that would otherwise fall under the state Rule;
For those held in custody pending arraignment or setting bail, Courts should prioritize the first hearing, where release may be ordered. Although the statutory time has been extended, public health concerns demand speedy determination whether a person can be released pending further proceedings;
Expanding the ability of counsel to appear for the defendant by Emergency Rule 5 in felony cases with an oral representation of consent is a practical and efficient way to reduce exposure for courts, staff, and counsel;
We continue to have concerns about the use of technology to conduct evidentiary hearings. We believe it is critical that Rule 5 requires consent of the accused for any remote/technological alternative. It is also critical that the communication between attorney and client during remote hearings is explicitly privileged under Evidence Code §952, as the potential for overhearing or intercepting a communication and using it against the accused is significant.
Emergency Rule 7 provides important guidance to local courts on the delinquency proceedings which must go forward during the crisis. CACJ is concerned that the broad authorization of remote/technological hearings does not require the consent of the minor or counsel for the minor. This defect is mitigated, to some degree, by the provision making an objection to remote proceedings grounds for a continuance of the hearing. But we believe there are cases which should be heard timely, and cannot give full effect to the minor’s rights if done remotely. There should be a consent requirement, as in Rule 5.
Thank you for the opportunity to comment on these proposed emergency rules on behalf of CACJ and our 1,100 attorney members. We hope that adoption on April 6 will lead to significant reductions in jail population in the next week. Even at this point in the pandemic curve the changes will reduce infections, hospitalizations, and death.
Steve Munkelt, Executive Director
California Attorneys for Criminal Justice