In California, cash bail must be affordable – that’s according to a state supreme court ruling three years ago. 

But a report released today from the UCLA School of Law Pretrial Justice Clinic and La Defensa’s Court Watch LA program found that across two courtrooms and over 200 cases in LA County Superior Court, unaffordable cash bail was still overwhelmingly being ordered, despite the fact that over half of the cases observed represented a non-violent felony. 

In fact, court watchers observed that judges were often ordering bail without a prosecutor requesting it.

The median bail across both courthouses observed was $100,000 — which is double the state bail average, already one of the highest in the nation. In more than 75% of cases observed in the report, a judge did not consider the defendant’s ability to pay.

“Anyone watching would not think that what is happening passes for justice in this country,” said Alicia Virani, a UCLA law school professor of the pretrial justice clinic and a contributor to the report.  

Courts officials and criminal justice reform advocates across the state agree that people often languish in jail not because they are a threat to public safety, but because they can’t afford bail. And LA County jails are notoriously dangerous and overcrowded. 

In response to a lawsuit, LA County also adopted a new bail policy last year that did away with cash bail before arraignment for many nonviolent, non-serious felonies and misdemeanors. 

The new report also detailed negative reactions to court watchers by court bailiffs, who are Los Angeles County Sheriff’s Department deputies. “We’re watching them, and they know it, and they’re getting scared,” said Bryanna Siguenza, the judicial accountability lead at La Defensa, who is often in court with volunteers and helped shape the report. 

David W. Slayton, the executive officer of the county’s court system, defended the court’s progress on bail reform in an interview with LA Public Press. According to court data, bookings have dropped roughly 20% since the new bail policy. Slayton said many people are also cited and released by law enforcement in the field with no day in court. “The highest-risk people are the ones who are showing up,” he said.

However, Slayton also acknowledged that the court has not tracked cite and release data from law enforcement since the new bail schedule began last year. 

What is court watching?

Court watching might be self-explanatory: Volunteers plop down into the uncomfortable wooden court benches for hours at a time, watching judges, attorneys, law enforcement, and court staff and recording their observations. Are bails being set unreasonably high? Are judicial officers speaking professionally to defendants? 

A year ago, advocacy organizations nationwide along with singer-songwriter Fiona Apple launched the National Courtwatch Network, which created a hub for the 30 court watching efforts spread out across the country. 

In California, court watching efforts have mobilized to monitor cash bail after the state supreme court ruled in In Re Humphrey in 2021 that bail set at a level that a person cannot afford to pay is unconstitutional. 

A separate ruling last year in LA County in Urquidi v. Los Angeles et. al said that jailing people before being charged with crimes just because they can’t pay bail is unconstitutional. In response, LA County introduced a new pre-arraignment bail schedule that went into effect last October.

The criminal justice reform organization La Defensa took over managing the Court Watch LA training and programming last summer from the National Lawyers Guild of Los Angeles. 

Since last June, La Defensa has trained 230 court watchers and hosted 20 court watching trips across 13 courthouses. The new report came out of a partnership between the organization and the UCLA law pretrial justice clinic, which sent law students and volunteers to two courthouses nearly every weekday last October. 

While court watchers noted that some judges were receptive to their presence — with attorneys in the room noting a positive change in their behavior — they’re not always a welcome sight to everyone. 

During a Zoom interview, La Defensa’s Siguenza demonstrated the “I’m watching you,” hand signal — two fingers pointing to her eyes and back. “He did this to her when she walked into the courtroom,” Siguenza said of one court bailiff to a volunteer court watcher. 

The report also outlined concerning treatment by bailiffs towards members of the public. “I watched a bailiff kick a mother out of the courtroom for smiling at her son in custody,” one court watcher observed last October. 

Slayton said the court has no authority over the conduct of sheriff’s deputies. In a statement, the sheriff’s department said they had not received any complaints regarding the alleged incidents, and that judges can direct bailiffs “in certain instances for security purposes and related to court proceedings.”

It’s a different reaction with the defendants. Siguenza described one encounter with a man who had been in and out of court for years on his case. “He was like, I am so happy you’re here, because this judge keeps fucking me over.”

Court proceedings in LA County operate at a dizzying clip, with dozens of cases processed in just a few hours in some courtrooms. 

In February, an LA Public Press reporter spent the morning in Judge Enrique Monguia’s downtown courtroom alongside La Defensa staff and two volunteer court watchers. 

It was the first time in a US courtroom for court watcher Agustin Mogni, an Argentinian defense attorney studying at UCLA. He grimly noted the “dynamic” influx of new defendants, the judge referring to them not by their names, but by their calendar number, and their public defenders racing to keep up. 

It was a stark contrast to Mogni’s ten years of practicing law in Argentina. “We are used to like, two hearings, three hearings per day,” he said. 

The Data

Release-type by race data featured in the UCLA School of Law Pretrial Justice Clinic and La Defensa’s Court Watch study.

Unsurprisingly, the report shows Black and Brown defendants were overwhelmingly represented, and much more likely to get cash bail. White defendants, though a small sample size, had the highest rates of release on their own recognizance as well as no bail holds.

Court watchers reported that cash bail was ordered by judges in more than two-thirds of total cases observed, with only a small number of total defendants released on their own recognizance. 

But court watchers also found that most defendants observed with nonviolent charges were also being assigned cash bail instead of being released. 

38% of defendants identified as eligible to be released pre-arraignment were also observed to be in custody at that time. According to the court’s own bail schedule, most nonviolent charges should not have bail — though, an assessment by a judge called a magistrate review can sometimes lead to it. 

There are limits to the new study. It wasn’t always possible for court watchers to determine charges in a case. It’s not clear exactly how defendants were evaluated before the court by law enforcement or a magistrate judge — who police can refer a defendant to in order to evaluate whether the bail schedule should apply to them.

The court keeps its own data on the rollout of its new bail schedule. It shows a nearly even split on defendants eligible for release who were booked and released versus those being held for review at the time of their booking. If reviewed, the data shows those defendants are also overwhelmingly held in custody before arraignment.

In an interview, Slayton responded by pointing to data showing that the court labeled less than a third of people who were in custody pending a magistrate review as low risk. 

UCLA’s Virani co-authored a 2022 study that looked at the impact of the state supreme court bail ruling across California and found that there was no net decrease in the state’s pretrial jail population or bail amounts. 

LA County’s own jail population, hovering around 12,400 incarcerated people daily, is nearly identical to what it was last fall when the new bail schedule rolled out. About 40% of law enforcement bookings are for a serious charge and not eligible for pre-arraignment bail review, according to court data.

Release-type by courthouse data featured in the UCLA School of Law Pretrial Justice Clinic and La Defensa’s Court Watch study.

“If judges were following the letter of the law of the case In Re Humphrey, we would expect to see more people released pretrial, we would expect to see lower cash bail amounts, and we’re really not seeing any of that,” said Virani.

“It sort of feels like they’re above the law, when really, they’re meant to be enforcing the law.”

Back in the courtroom

Court watchers exist to hold judicial officers accountable, but, on the job, they don’t want to draw attention to themselves. That fly-on-the-wall behavior is often rewarded with moments that don’t translate well into data: raw depictions of the often blurred lines in court. 

In Judge Monguia’s courtroom in February, a flustered young public defender fumbled his way through questioning a California Highway Patrol officer on the stand about his recollection of an altercation on the freeway involving his client. The officer, clearly well prepared, coolly batted his questions away. 

An hour later, Monguia and the prosecutor on the case turned to each other, grinning, and began tearing into the lawyer’s poor defense of his client within earshot of the LA Public Press reporter, volunteer court watchers, and the public.

When the reporter went up to Monguia moments later and asked why he was discussing the case with the opposing counsel outside a hearing, the judge, a bit taken aback at being approached, replied that he was just trying to help the young public defender improve.               

It would have been challenging for the public defender to hear any advice Monguia might have had, considering he was long gone from the room. 

Slayton declined to comment on the incident, stating that the public can submit any complaints on staff conduct or ethics to the court. 

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