Study session on $0 bail: county, court and advocates debate pretrial release, data gaps and next steps

The Public Safety & Justice Committee held a study session on June 25 to examine reinstating a $0 bail schedule and broader pretrial release policies. County administration, the District Attorney’s Office, the Superior Court, probation and pretrial services staff, and community organizations took part. The session framed $0 bail largely as a pre‑arraignment, operational question that interacts with pretrial services, magistrate review and local citation practices.

Casey Halkin, deputy county executive, described the jurisdictional and historical context: the Judicial Council issued an emergency statewide $0 bail schedule in April 2020 during the COVID pandemic; the county’s superior court extended $0 bail locally through July 2022. Halkin noted that while jail population fell sharply during the pandemic, Santa Clara County has maintained a jail population close to the level on the last day of $0 bail — 2,752 on July 30, 2022 versus about 2,792 on the day administration prepared its slides — and credited collaborative pretrial diversion and backlog reduction efforts for keeping the population from returning to pre‑pandemic highs above 3,000.

Assistant District Attorney David Angel and DA leadership described the office’s approach: the DA’s office said it generally does not seek cash bail as a condition for release and emphasized that judges retain discretion to impose nonmonetary conditions, including supervision, when needed for public safety. Angel noted that most people in county custody now are accused of felonies and that many lower‑level charges are resolved without prolonged detention because of coordinated diversion and pretrial services.

Judge Giffon (Superior Court) explained the court’s role: state law requires judges to adopt an annual bail schedule, but magistrates and judges conduct individual reviews at arraignment and during prearraignment magistrate checks. He said judges routinely consider nonmonetary release conditions and that, in practice, $0 bail or its equivalents are being used in court daily even when not written into the county schedule. He added that ethical rules prevent judges from making public policy statements about specific pending matters, but that the bench does consider bail schedule issues each year in internal deliberations.

Community advocates argued for bringing back a $0 bail schedule. Raj Jayadev, executive director of Silicon Valley De‑Bug, and Salil Dudani of Civil Rights Corps said short pretrial jailing causes immediate harms — job loss, family disruption and destabilization — and that research shows short pretrial detention is associated with higher rates of later reoffending. They cited Los Angeles County’s recent experience implementing an automatic release schedule for nonviolent felonies and misdemeanors and said studies there have not shown a crime surge after the reform. Jayadev also warned that detaining people increases their risk of immigration enforcement by ICE if they pass through county jails.

Salil Dudani, senior attorney at Civil Rights Corps (which litigated the Humphrey case), summarized relevant research: short periods in custody are tied to higher likelihood of future felony convictions and long‑term economic harm; nationally, suicide is a leading cause of death in jails and many deaths occur in the early days of custody. He and other advocates urged the committee to focus on the prearraignment window — the hours and days between arrest and arraignment — because that is the period where a bail schedule is binding and where decarceration can have the most immediate benefit.

County staff and several supervisors asked for additional data and operational detail: which people would be affected if a $0 schedule were adopted, how many detainees are eligible for $0 release but remain detained for other reasons, the rate at which magistrates override presumptive releases, and how many people are being supervised with electronic monitoring or similar conditions as an off‑ramp from custody.

Supervisor Lee requested a follow‑up report on the county’s risk assessment tool used by pretrial services; Pretrial Services Director Matt Fisk agreed to provide that information to the committee. The committee also discussed next steps for information sharing with the Superior Court; Judge Giffon said the court welcomes factual material from system partners for judges’ internal deliberations on the annual bail schedule.

No formal policy change was made during the study session. The discussion generated multiple follow‑up items: (1) county administration and pretrial services to provide more detailed data on prearraignment decisions, PSA scores, and magistrate outcomes; (2) the Sheriff and law enforcement to clarify citation/citation‑and‑release thresholds and any related local policies; and (3) Pretrial Services to report on the performance and limitations of the tool it uses to assess release risk.