California must decrease jail population to save lives from COVID-19. Here’s how

The California Judicial Council is putting lives in grave danger by increasing the number of people who are held in jails awaiting trial. Its order on April 30, extending again the time individuals can be detained without trial will keep more people in jail for longer, risking the health of those detained and also those in the community.

The effort should be exactly the opposite, looking for every way to decrease the jail population to limit the spread of COVID-19. This virus, more than others, has the ability to spread quickly and the living conditions within jails facilitate this spread. It was reported last week that 60 percent of the prisoners at the federal prison at Terminal Island tested positively, and several have died.

There have been major outbreaks of COVID-19 in other jails and prisons across the country. Warnings from medical professionals familiar with jail populations have been dire; social distancing is not possible for those incarcerated.

The Judicial Council, in an order on March 30, authorized counties to triple the number of days an individual could be held in custody awaiting their preliminary hearing. In addition, for individuals whose trial dates were already set and have been waiting for at least 60 days (if not longer), the order authorized an additional two-month delay for their trial. All during this time, individuals who are presumed innocent can be held in jails awaiting their trials.

On April 30, 2020, the Judicial Council issued a statewide order further extending deadlines for California’s superior courts to hold criminal trials. The order adds a 30-day extension of time, bringing extensions of time to hold criminal trials during the pandemic to a total of 90 days.

Extending the time for trials is based on the understandable desire to keep people – judges, jurors, lawyers, court personnel, witnesses – away from courthouses. But for people in custody, these orders will keep them confined longer and in conditions where they are in imminent and high danger, while also increasing the risk to corrections personnel and their families.

Clearly, the California Judicial Council is aware of these risks and has displayed some interest in mitigating them. The Council issued a separate emergency order in early April providing that anyone arrested during the course of the pandemic for most misdemeanors and low-level felonies will be held on $0 bail and thereby released.

Serious and violent felonies such as murder, rape, robbery, assault with a deadly weapon and kidnapping are excluded from the emergency schedule, as well as those arrested for domestic abuse, violating a protective order and driving under the influence. Judges also retain discretion to keep inmates detained before their trial for good cause.

Unfortunately, the $0 emergency bail schedule has not resulted in the mass releases that they intended. Since the emergency bail schedule went into effect on April 13, only around 250 people have been released in Los Angeles County. This means that people remain in custody for longer periods of time because of delays in preliminary hearings and extensions of criminal jury trials.

On a given day, there are 70,000 people incarcerated in this state’s jails, and thousands of people that enter the jails on a daily basis. In addition to the threat to those incarcerated, studies show that jails are likely to cause infection and illness in communities outside of the jail. High rates of pretrial detention are jeopardizing, not preserving, community safety.

There are many things that can be done. Release from jail those awaiting trial who are not a threat to public safety. Aggressively implement $0 bail. Extend hearing timelines for people at liberty while maintaining statutory speedy trial rights for people in custody.

To ensure the safety of staff, witnesses, and jurors who will need to enter the courthouses, the state should work enforce social distancing and health precautions. Lessons can be learned from the existing mandatory practices for grocery stores and other essential businesses that maintain the safety and well-being of customers as well as workers.

As our communities adjust to the pandemic, many workers have been appropriately characterized as “essential.” Their continued efforts meet our basic needs. There is an implicit duty to maintain medical services, food supply chains, and delivery routes. Certainly, where presumptively innocent people are detained and seeking to exercise their rights, judges and other court personnel are essential in responding to this crisis and preventing the spread of the virus.

Their health must be protected. But this must be done without needlessly endangering the lives of others.

Many other places around the country have dramatically reduced their jail populations. California must as well to protect the health and safety of everyone in our state.

This story was originally published May 15, 2020 at 5:00 AM.