March 22, 2023 Demurrer Hearing
Judge Riff opening remarks:
“This is a very important case. And I think everybody agrees this case raises important interests of justice, fairness and frankly, human dignity. And the case speaks to one of the most basic principles of our system of justice which is that our law will treat all persons arrested and charged with a crime fairly and equally and will not treat them differently based upon their ability or lack of ability to pay money to secure their freedom from custody. It’s not a crime to be poor or impoverished and impoverished people should not suffer unfair treatment by the criminal justice system because they’re impoverished. Everyone here agrees with that, to my knowledge.”
CRC’s Salil Dudani:
“In this case there is an unrebutted evidentiary record with overwhelming evidence that this policy is counterproductive to the government’s own interest, very important interest, of ensuring appearance in court and protecting the public. This policy does neither, it is counterproductive to both.”
March 23 Demurrer Hearing and Ruling
Salil Dudani on LA County’s bail schedule:
“The point is there is a period of time when people are jailed by the defendants — by LAPD and by LASD — solely on the basis of their lack of access to money. That’s the point.”
“The policy determines who is free and who is in jail based on their access to money. People who have immediate access to money [are released]. And people who don’t languish in jail — as we’ve pled — two to five days, as our uncontroverted evidence shows.
March 27 Preliminary Injunction (PI) Hearing
MTO’s Brad Brian on why LA County’s bail schedule is unconstitutional like the one struck down by the court in Welchen v. Sacramento:
“The bail schedule is over inclusive because it confines many people who may not pose any risk simply because they cannot afford to pay the amount assigned by the schedule, and it is also underinclusive because it allows others who might pose a greater risk to go free simply because they can afford to pay a higher bail amount.”
April 25 PI Hearing
Dr. Michael R. Jones on money bail increasing future arrests:
“Defendants are – when incarcerated in pretrial detention for more than 24 hours, and then they are released — are more likely to be rearrested again during pretrial release. They are more likely to be arrested up to – depends on the study – a year to two years later, so kind of longer-term recidivism. More likely to lose their job. Struggle to make their – or could lose their housing, caring for dependents. They are more likely to plead guilty and be convicted, and they ‘re more likely when they do receive a sentence, if they are convicted, if that sentence is to incarceration in jail or prison and that that sentence is a longer duration, again compared to people who get out or get out sooner.”
Dr. Jones: “Secured money bail can never keep us safe.”
“The thing with secured money bail – and there are a lot of justice partners, judges, prosecutors, defense attorneys, sheriffs, law enforcement, et cetera, who don’t understand this, as well as even the public and the media – and that is: secured money bail can never keep us safe.”
May 3 PI Hearing
Expert Dr. Christine Scott-Hayward questioned by Public Justice attorney Brian Hardingham about criminogenics: (For additional context, see the declaration of Dr. Christine Scott-Hayward, this Aurelie Ouss and Megan Stevenson study and this Christopher Lowenkamp study.)
PJ’s Brian Hardingham: “And turning to the effect of pretrial detention on future arrests, do you recall your conclusion that pretrial detention for 24 hours or more increases the likelihood that a person will be arrested for new criminal activity?”
Scott-Hayward: “Yes, I do.”
Hardingham: “And what is one key study that strongly supports that conclusion?”
Scott-Hayward: “[P]robably the most persuasive study is the low-income study from 2013. And so that is a study where they have this very large sample, 150,000 cases from an entire year in Kentucky. So that is everybody who was booked during that time period. So felonies, misdemeanors. They have quite a bit of information about the individual defendants, you know, the charge, level of offense, demographic information, risk scores and so what they were able to do, then is to isolate the impact of pretrial detention. And they concluded that, you know, pretrial, the people who were detained two to three days were more likely to be rearrested than those who were released within the first day.”
Hardingham: “And do other studies support the same result using similar methods?”
Scott-Hayward: “Yes, yes. I believe I cited a few more in the article, in the declaration even.”
Hardingham: “And given these findings, is it correct to conclude that pretrial detention of over 24 hours is itself criminogenic?”
Scott-Hayward: “Yes, that is my opinion.”
Hardingham: “And does pretrial detention itself, therefore, increase the risk to community safety?”
Scott-Hayward: “Yes.”
Hardingham: “And can you tell us a little bit about the state of the research on why pretrial detention is criminogenic?”
Scott-Hayward: “[T]here is this large body of research that talks about the impact of pretrial detention on individual case outcomes. So, for example, you are more likely to be convicted largely because you plead guilty. You are more likely to be sentenced to incarceration, whether that be jail or prison, more likely to receive a longer sentence. So given what we know about incarceration and the impact that incarceration has on recidivism down the line, that is one way in which—in which this impacts public safety. But then, there is also a variety of explanations as to, you know, just thinking about those few days in isolation. We know that detention is destabilizing. People can lose their jobs.”
Dr. Scott-Hayward on the scientific research showing money bail is ineffective:
Hardingham: “Turning now to the relationship between secured money bail and public safety, do you recall concluding that no imperial evidence that secured money bail is more effective than unsecured money bail, or nonmonetary conditions assuring public safety and law abiding behavior?”
Dr. Scott-Hayward: “Yes, I do.”
Hardingham: “And what is one key study that supports your conclusion there?”
Scott-Hayward: “[T]he Ouss and Stevenson study…is a really good one here. Because not only were they able to take advantage of that natural experiment, the zero cash bail, but they also have a lot of different variables that they are able to control for. So, they are controlling for the typical things that we would include, like demographics, seriousness of the offense, type of offense. But they also have, you know, whether the person was represented by a public defender; they have, you know, whether there were prior criminal convictions, prior failures to appear. So, they have a lot of good data there. And ultimately their conclusion is that…there were no difference in rearrest rates between people released on secured bail and people released on their own recognizance. And that, again, is a statistically significant finding.”
Hardingham: “And by statistically significant, are you saying that those controls allow one to draw a causal conclusion—”
Scott-Hayward: “Exactly. About 95 percent agreement.”
May 5 PI Hearing (Plaintiff Tamara Kase, court-appointed expert Dr. Paul Heaton)
Tamara Kase on jail conditions:
MTO’s Tiana Baheri: “Could you tell us about the conditions of that holding cell?”
Tamara Kase: “Horrible and quite inhumane. It was freezing, like below 50, felt like. Unsanitary. No hygiene items. It was dark. You didn’t know really if it was day or night, quite dismal. I was denied aspirin. I had no socks. I asked for an additional blanket. I could see they had longsleeved shirts in an area there, but I didn’t get anything until hours later. It was freezing cold in there and quite dismal.”
Baheri: “Did you have access to clean water?”
Kase: “No, I did not. In fact, the sink hardly worked in there. It was connected to the toilet, and I think the water was running like from the sink to the toilet. I don’t know. It was just seemed real unsanitary and the sink didn’t really work well. And I would not drink that water. Even though I was dehydrated and needed water that entire time, couldn’t drink it.”
Baheri: “And after that did prosecutors pursue charges against you?”
Kase: “No, ma’am. There was never any— it didn’t even go to court. There was no—the DA didn’t press any charges, so it really didn’t go anywhere. There was no charges. It was completely dismissed. I didn’t even have to see a judge. I did go in just to get an appearance. But it—it was already dismissed. There was no charges.”
Judge Riff and expert Paul Heaton: (Please see Dr. Paul Heaton’s report The Effects of Misdemeanor Bail Reform.)
Judge Riff: “Is one of the research questions that you were thinking about, you and colleagues were thinking about as you were…conducting the study and writing the article, is the question of whether pretrial detention itself causes crime?”
Dr. Heaton: “Yeah, I think that is certainly one of the questions that we explore in the paper and that I think the paper actually provides a very informative answer. [W]e were trying to understand the causal impact of pretrial detention on a range of outcomes. We actually started the study because we were concerned about wrongful convictions and the possibility particularly in misdemeanor cases that pretrial detention might skew the guilt -innocence determination, but we also looked at future crime, as did a number of the other studies that I referenced.”
Riff: “Okay. What does the word “criminogenic ” mean?”
Heaton: “It means “tending to cause crime. Or “produce crime.””
Riff: “Summarize for me your opinion as to whether—well, the extent to which pretrial detention is criminogenic.”
Heaton: “Well, I would certainly say from this study, the empirical evidence would suggest that the answer is yes, it is criminogenic.”
May 8 PI Hearing (expert Insha Rahman)
Expert Insha Rahman on the evidence that pretrial detention leads to worse outcomes:
“[T]here has been study after study that has found that if you place two similarly-situated defendants, same charge, same criminal history, same other demographic and other factors, and one person is detained, either on money bail or preventatively detained while their counterpart is released pretrial, the person who is released pretrial will have a greater likelihood of having a better outcome in the case, meaning avoiding a criminal conviction or if convicted, avoiding a jail or prison sentence or other more punitive sentence. As well as better outcomes, what I would call life outcomes.
They are more likely to stay employed, more likely to stay connected to any services that they engage in the community, such as mental health or substance abuse treatment. And they are more likely to stay connected to family and other community ties which help with pro-social behavior and success in the community.
And so one thing that we’ve seen, to sort of flip it on its head, is the individual who is detained pretrial is actually more likely in the future to be rearrested because research has found that just the fact of incarceration, where somebody loses those important ties to the community of employment, access to treatment, family ties—that in and of itself is so destabilizing that they’re more likely to engage in criminal behavior and be arrested again in the future.”
May 9 PI Hearing (Closing Arguments)
Judge Riff on the hearing:
“We have over the past multiple weeks heard from multiple witnesses. Representatives of the Sheriffs Department, the Los Angeles Police Department, four very well-qualified experts broadly in the area of criminology and related social sciences. And the Court has considered a great deal of published material, by which I mean academic studies found in peer-reviewed academic journals and the like. So, what we are doing here today, now that all the evidence has been received on the question of a preliminary injunction, is to hear any last words from the lawyers as to what the Court ought to do.”
Salil Dudani on expert testimony:
“Your Honor, the defendants have acknowledged that they have put in the record no evidence that secured money bail furthers any government interest or keeps us safe, does not further public safety, does not diminish rearrest. Does not even promote court appearances, it’s supposed core function. What the record shows is that no such evidence exists or could be produced and that is what the voluminous testimony from the experts showed. That is what the comprehensive literature review from the director of the school of criminology at Cal State Long Beach showed and so on. The evidence could not be produced because it does not exist. That is what this record shows.”
Salil Dudani on the historic moment:
“[T]his is a historic moment in the State of California. This is the first time a court has really rigorously probed the evidence and seen whether money bail actually does any good. It has been decades—that 1980 Van Atta [v. Scott] case from the Supreme Court of California, it is remarkable to read it today. In 1980, the Supreme Court of California is talking about how money bail is unfair, how it unfairly affects people who cannot pay to get out. How it causes more crime because it sends people to jail who do not need to be there, and then they come out and they are more likely to commit crime.
All of that was noted by the Supreme Court of California in 1980. But today marks the end of the first time a court in this state has really rigorously probed this evidence. And the conclusion has been, what it always in when the evidence is probed, which is that secured money bail does not further any public interest. And that’s why injunctive relief is urgently needed.”
