Courts, Plagues and Politics

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

To the conspiracy minded, one might think when it comes to jurisprudence, the coronavirus plague is a scheme thought up by criminal justice reformers to advance their agenda. Consider the movements of late to reduce the number of prisoners and eliminate bail. Because of the coronavirus those things are happening now in California.

The California Judicial Council, responsible for ensuring the consistent, independent, impartial, and accessible administration of justice as the courts rule-making body, issued orders after two emergency sessions that change judicial procedures in an effort to reduce the spread of the coronavirus.

Among the temporary changes ordered by the Council are remotely conducting proceedings by using technology, suspending foreclosures and evictions, and adopting a statewide emergency bail schedule that sets bail at $0 for most misdemeanor and lower-level felony offenses.

By reducing bail to zero the intention is to diminish jail populations in crowded facilities easing the close contact that is known to spread COVID-19.

Chief Justice Tani Cantil-Sakauye, chair of the Judicial Council, called the moves unprecedented and “to say that there is no playbook is a gross understatement of the situation.”

You might say there was a distant precedent to courts reacting to a plague. During the great bubonic plague that would ultimately kill about one-quarter of London’s population in 1665-66, courts moved their operation from London to Oxford to escape the pestilence.  But while the plague was generally centered in London, the pandemic that invaded California now is universal and has taken the California courts into unchartered waters. 

While the situation is certainly not a conspiracy dreamed up by advocates–the Council made decisions for understandable reasons–the actions will play into political issues swirling around the judiciary after the public health emergency subsides.

Already qualified for the November election is a referendum on a law to end cash bail in California. Previously, California law provided that criminal suspects pay a cash bond to be released from jail pending trial with the promise to return to court for trial and hearings. The law passed by the legislature would eliminate cash bail and replace it with a risk assessment system.

Criminal justice reformers see a move toward zero bail as eliminating wealth as a basis in determining whether an individual will spend time in jail waiting for trial. Opponents claim eliminating bail and allowing potential criminal suspects out from behind bars will endanger the public.

Foregoing bail as ordered by the Judicial Council could well provide fodder in the coming political campaign on the bail referendum depending how some suspects react to the opportunity of being free. If a number go back to a life of crime, expect to see those stories told in campaign ads. If that does not occur to a noticeable degree, it could strengthen the argument of bail reformers. 

Also scheduled for the November ballot will be a measure to alter past initiatives, Propositions 47 and 57. The former measure reduced some crimes from felonies to misdemeanors while the latter allowed nonviolent inmates to petition for earlier release. A chief reason Proposition 47 and 57 were advanced was to reduce jail populations. The corrective ballot proposal would shorten the list of those who can seek earlier parole and reclassify some theft crimes from misdemeanors to felonies. In other words, instead of reducing the prison population, the new measure, if passed, would stymie that goal.

Results from actions taken by the courts to help in the statewide effort to subdue the coronavirus outbreak will find their way into the fall’s political tug-of-war over judicial reform issues.

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