Genevieve Richardson

Executive Director

March 27, 2020

Via electronic mail

Judicial Council of California

Judicialcouncil@jud.ca.gov

RE: Bay Area Legal Aid’s Interest in the Report to the Judicial Council dated March 27,
2020

Dear Members of the Judicial Council,

As a provider of civil legal services to low-income individuals and families in the San
Francisco Bay Area, at Bay Area Legal Aid (“BayLegal”) we are concerned about the Judicial
Council chairs’ recommendations’ impact on in-custody persons. BayLegal’s Health Consumer
Center helps California residents obtain health care via public and private health insurance
programs. BayLegal’s Reentry Project works with justice-affected communities by providing
wrap-around legal services to individuals with arrest or conviction histories causing barriers to
successful reintegration into society. Each project adheres to an organization-wide priority to
ensure our clients have meaningful access to quality physical, mental and behavioral health care,
with a focus on marginalized communities - persons with disabilities, people of color, survivors
of abuse and exploitation, and people experiencing homelessness - many of whom are
significantly impacted by the report’s recommendations.

In their Report to the Judicial Council dated March 27, 2020, the Chair of the Judicial
Council and each of its six internal committees recommend that the Judicial Council take
additional, extended measures to respond to the COVID-19 public health crisis. In particular, the
Chairs recommend that the Judicial Council extend multiple statutory deadlines pertaining to in-
custody persons subject to criminal hearings, even 90 days beyond any current emergency
order(s) - potentially tripling the period of due process suspension, with most of that time
occurring after the emergency has ended.1 Executive Order N-38-20 purports to remove any
legal limits to the Chief Justice’s emergency power based on the Emergency Services Act. But
that act states, “Whenever the state of war emergency or state of emergency has been terminated,
the orders and regulations shall be of no further force or effect.” Gov. Code § 8567(b). Also,

1
March 20, 2020 letter from Chief Justice Tani Cantil-Sakauye to Presiding Justices and Court Executive
Officers, https://newsroom.courts.ca.gov/news/california-chief-justice-issues-second-advisory-on-
emergency-relief-measures (noting limited carve-out for items enumerated in Government Code § 68115)
(“March 20, 2020 CJ Order”); March 23, 2020 Judicial Council Statewide Order by Chief Justice Tani
Cantil-Sakauye, at *4 (authorizing all superior courts “to adopt any proposed rules or rule amendment that
is intended to address the impact of the COVID-19 pandemic to take effect immediately”),
https://www.gov.ca.gov/wp-content/uploads/2020/03/3.24.20-EO-N-36-20-text.pdf (“March 23, 2020 CJ
Order”).
Alameda County Regional Office • 1735 Telegraph Avenue, Oakland, CA 94612 • www.BayLegal.org
Bay Area Legal Aid serves Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, and Santa Clara counties
although the Executive Order relies on the Emergency Services Act in purporting to suspend the
limits of the Chief Justice’s Authority in § 68115, the Act is not a “regulatory statute.” See id.
§ 8571. Construing that term this broadly essentially gives the Governor unfettered power to
suspend core statutes during an emergency. The Executive Order undermines the long-
established constitutional principle of separation of powers. Through the Executive Order, the
Government purports to authorize the Judiciary to act contrary to statutory law, notwithstanding
the Legislature’s express limitations to the Executive and Judiciary’s emergency powers in the
Emergency Services Act and Government Code § 68115.

We are concerned that the Chairs’ recommendations do not adequately ensure the due
process and other constitutional rights of detained persons, who are our clients and members of
our communities. We are also concerned that the recommendations endanger the health of
detained persons by prolonging their in-custody time, thereby increasing their potential exposure
to the novel coronavirus. We therefore ask that you exercise your authority to take immediate
steps to address these concerns.

There is a greater risk of spread of COVID-19 in jails.2 Jail staff are unable to establish
conditions ensuring all detained persons can adhere to prevention measures issued by the
California Department of Public Health.3 Many detainees will be in close proximity to
individuals who may already be infected but are asymptomatic or without access to testing. The
close proximity of persons in these facilities all but guarantees rapid spreading before staff will
have the opportunity to isolate and provide treatment to infected persons. Many facilities lack the
necessary medical staff to adequately respond to an outbreak. Also, persons providing physical
and mental health services, educational and other programming, legal representation, and court
access to detained persons are at greater risk by virtue of their proximity to these populations.
And prolonged detention of these individuals increases risk to the public at-large as most
detained youth and adults will return to their communities.4 It is imperative that the Judicial
Council take action now to mitigate community spread.

2
See CA Executive Order N-36-20, March 24, 2020 (Governor Newsom’s order barring new admissions
to state prison and state youth facilities will reduce state prison populations, but may result in more
people being held in county jails), https://www.gov.ca.gov/wp-content/uploads/2020/03/3.24.20-EO-N-
36-20.pdf.
3
https://www.cdph.ca.gov/Programs/CID/DCDC/PublishingImages/COVID-19/CORONAVIRUS-
FINAL-2.png.
4
See In the Matter of the Request to Commute or Suspend County Jail Sentences, Docket No. 084230
(Sup. Ct. NJ March 22, 2020), https://www.aclu-nj.org/files/5415/8496/4744/2020.03.22_-
_Consent_Order_Filed_Stamped_Copy-1.pdf.

2
 We therefore ask you to take the following actions:

Take steps to safely reduce crowding in the jails

 Prioritize arraignment and preliminary hearings for in-custody defendants and detention
hearings for juvenile dependent proceedings to ensure they occur within the time required
by Penal Code §§ 859b, 825, 1382, Welfare & Institutions Code §§ 315, 334, 632(a),
657, and constitutional law.5
 We specifically ask that you cease authorizing indefinite detention of persons suspected
of a crime or offense beyond the statutory and constitutional limits without filing of
charges, arraignment, appointment of counsel, or a probable-cause determination.6
 Recommend release all adult pretrial detainees incarcerated due to inability to post bail
on their own recognizance unless there is evidence that a potential release poses a safety
risk to a specific individual.7
 Recommend re-sentencing and release of detained adults in state prison or in county jail
within 120 days of sentencing who have six months or less actual time (assuming credit
earning) remaining on their disposition or sentence, are older than 60, have diminished
health capacities, or are pregnant, unless release poses a safety risk to a specific
individual.8
 Recommend modification of supervised release terms and release of detained adults who
have six months or less actual time (assuming credit earning) remaining on their
disposition or sentence, are older than 60, have diminished health capacities, or are
pregnant, unless release poses a safety risk to a specific individual.9
 Recommend delay in sentencing for all out-of-custody defendants until the public health
crisis has passed.
 Recommend cessation of incarceration for alleged non-violent violations of any form of
community supervised release.10

5
March 21, 2020 CJ Order, at 6, 7.
6
See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 56-58 (1991) (due process requires that
probable cause determinations for pretrial detainees occur without unreasonable delay); Powell v.
Alabama, 287 U.S. 45, 57 (1932) (“perhaps the most critical period of the proceedings against [criminal]
defendants” requiring appointment of counsel is “from the time of their arraignment until the beginning of
their trial, when consultation, thoroughgoing investigation and preparation [are] vitally important”); Cal.
Const. art. I § 7(a) (due process); Cal. Const. art. I § 12 (right to bail); Cal. Const. art I, § 14 (right to
felony arraignment without unnecessary delay); see generally Cal. Const. art. I § 15 (criminal defendant’s
rights); see also Cal. Penal Code § 987 (right to counsel).
7
Cal. Const. art. I § 12; see generally Cal. Welf. & Inst. Code §§ 602, 628.1, 636.
8
Cal. Penal Code § 1170.
9
Cal. Pen. Code § 1203.2(a) (authorizing court to “order the release of a supervised person from custody
under any terms and conditions the court deems appropriate” upon arrest “[a]t any time during the period
of supervision of a person” released on probation and under the care of a probation officer, released on
conditional sentence or summary probation and not under the care of a probation officer, placed on
mandatory supervision under § 1170(h)(5)(B), subject to revocation of postrelease community
supervision under § 3455, or subject to revocation of parole under § 3000.08) & (b); Cal. Pen. Code §
1203.3(a) (authorizing the court to “at any time during the term of probation to revoke, modify, or change
its order of suspension of imposition or execution of sentence”) & (b).
10
Id.; see March 20, 2020 CJ Order at 5.

3
Take steps to reduce personal contact while protecting due process rights to the maximum
extent possible
 Allow liberal use of telephone or video appearance by counsel, defendant, and victims for
matters that do not require an evidentiary hearing.11
 Ensure all defendants can file documents with the Court during this public health crisis.
Accept e-signatures on all filings. Also, this may require setting up mechanisms for
electronic or fax filing.12
 Recommend that courts excuse personal appearance by defendants13 and stay issuance of
bench warrants14 during this public health crisis.
 Ensure all attorneys and court staff – including interpreters, court reporters, and others –
can perform their duties with at least six feet of distance from other people. This includes
ensuring that defense counsel may have a private conversation with their client15 with
appropriate social distancing.
 Provide appropriate personal protective equipment to all court staff and deputies required
to be in close contact with people.
 Provide public alternatives to physical access to courts for hearings if physical access is
restricted or closed to the public due to this public health crisis, such as public
livestreaming or a tele-conferencing option available on the court’s public website.16

Focus enforcement exclusively on protecting public safety, and reduce economic burdens
 Recommend that courts withdraw all bench warrants except in cases charging
violent felonies.17
 Recommend that courts stay assessment of all fines and fees for the duration of
this public health crisis and resulting economic crisis.18

11
March 23, 2020 CJ Order at 4.
12
March 23, 2020 CJ Order at 4.
13
Cal. Penal Code § 977(a) (authorizing misdemeanor defendant’s appearance by counsel in identified
circumstances), (b) & (c)(2) (authorizing felony defendant to appear through counsel).
14
See generally Cal. Welf. & Inst. Code § 663; Cal. Penal Code § 978.5(a) (court discretion in issuing
bench warrants).
15
People v. Alexander, 49 Cal. 4th 846, 887-88 (2010) (Sixth Amendment right to counsel includes
“[c]onfidential communication between a defendant and his lawyer”).
16
See In re Copley Press, Inc., 518 F.3d 1022, 1028 (9th Cir. 2008) (public right to attend hearings)
(citing Press – Enterprise Co. v. Superior Court (Press–Enterprise II), 478 U.S. 1, 12-13 (1986); cf. Cal.
Rules of Court, R. 2.550(c) (presumption of open court records). See Editorial: The Wisdom and Peril of
Closing Courthouses to the Public, LA Times, March 25, 2020,
https://www.latimes.com/opinion/story/2020-03-25/coronavirus-denies-publiccourt-access.
17
Id.
18
See, e.g., Cal. Pen. Code § 1203.1(a)(1)-(2) (court’s discretion to impose fine “where the maximum
possible term of the sentence is five years or less, then the period of suspension of imposition or
execution of sentence may, in the discretion of the court, continue for not over five years”); Cal. Pen.
Code § 1214.1(a) (court has discretion to impose civil assessments for failure to appear without good
cause); Cal. Pen. Code § 987.8(b) court has discretion to hold additional hearing regarding indigent
defendant’s ability to reimburse county for cost of appointed counsel “within six months of the
conclusion of the criminal proceedings”), (e)(2) (at hearing regarding indigent defendant’s present ability
to pay, “the court shall set the amount to be reimbursed and order the defendant to pay the sum to the
county in the manner in which the court believes reasonable and compatible with the defendant’s

4
  Recommend suspension of conditions of any form of supervised release that
requires in-person contact unless a phone or alternative option can be provided
and the existence of that option can be communicated to and utilized by the
supervised person.19

We appreciate your consideration and look forward to a response.

Sincerely,

Stacey Guillory and Catherine Kimel,

Bay Area Legal Aid

financial ability”), (g)(2)(D) (“ability to pay” includes “[a]ny other factor or factors that may bear upon
the defendant’s financial capability”); Cal. Health & Safety Code § 11372.7(b) (“If the court determines
that the person does not have the ability to pay a drug program fee, the person shall not be required to pay
a drug program fee.”); In re Brian K., 103 Cal. App. 4th 39, 44 (2002) (“Because [Welfare and
Institutions Code] section 775 allows for a modification of any order the court previously made, the court
in a section 777 proceeding may modify the fines it originally imposed under appropriate sections.”).
19
Cal. Pen. Code § 1203.1(j) (the court “shall have authority to modify and change any and all the terms
and conditions”); People v. Martinez, 226 Cal. App. 4th 759, 764 (2014) (“In general, the courts are given
broad discretion in fashioning terms of supervised release …”).