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Constitutional Law

May 19, 2023

Ending cash-based jailing: a win for the Constitution and public safety

As a former federal prosecutor, a constitutional law scholar and a former judge, we believe the Court made the right decision. The preliminary injunction order is sound, it protects public safety, and, most important, it vindicates constitutional rights that have long been ignored in Los Angeles.

Miriam Aroni Krinsky

Executive Director, Fair and Just Prosecution

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).

J. Anthony Kline

Justice (ret.),

Yale Law School


At any given time, thousands of people in Los Angeles are jailed solely because they are too poor to pay for their freedom. Between a person's arrest and first hearing in court ("arraignment"), a price is assigned to secure release by a "bail schedule" that does not allow any individual consideration of flight risk, public safety, strength of evidence, financial situation, or any other factor besides the arrest charge. The median amount set by the schedule is five times higher than the median bail in the rest of the country. The result is thousands of people crowding Los Angeles' filthy, often uninhabitable jails simply because they could not afford to pay for their freedom - with many of them eventually ordered released once a prosecutor and judge review their case, but only after sitting in jail for days.

This week, Los Angeles Superior Court Judge Lawrence Riff ordered an end to this system in a preliminary injunction in Urquidi et al. v. City of Los Angeles et al. - a suit brought by Phillip Urquidi and other individuals who spent at least five days in jail before being arraigned because they were unable to pay the monetary amounts set by the county's uniform bail schedules. Starting May 24, individuals arrested in low-level cases in Los Angeles must be released without requiring cash bail until they are formally arraigned

As a former federal prosecutor, a constitutional law scholar and a former judge, we believe the Court made the right decision. The preliminary injunction order is sound, it protects public safety, and, most important, it vindicates constitutional rights that have long been ignored in Los Angeles. There are currently nearly 7,000 presumptively innocent people jailed in Los Angeles awaiting trial and this order takes a step in the right direction by bringing relief to a portion of that population: people who are jailed prior to arraignment because they cannot pay.

The system that will go into effect in Los Angeles later this month is nothing new. Los Angeles adopted an Emergency Bail Schedule during the height of the COVID-19 emergency that similarly required the release of most individuals arrested for low-level offenses pending appearance before a judge. New Jersey, New York, Washington, D.C., and other jurisdictions have also already drastically - and safely - reduced or outright eliminated the use of money bail.

Multiple peer-reviewed studies have shown that eliminating reliance on cash bail actually decreases crime and promotes public safety, despite claims by some to the contrary. This is because even a few days of jailing is itself "criminogenic" - it has cascading negative effects on economic stability, housing, and health that can create the conditions for further crime.

The Court reached the same conclusion after consideration of these studies and a months-long hearing that included hours of expert testimony on the impact of cash bail. Not only is there no evidence to suggest that cash bail protects public safety, but as the Court put it: "[the] evidence has demonstrated that it is highly likely that the opposite is true: secured money bail regimes are associated with increased crime and increased [failures to appear] as compared with unsecured bail or release on non-financial conditions."

While cash bail is ineffective at protecting public safety, it is alarmingly effective at inflicting long-term harm on arrested individuals and the community at large. Economic effects of even a short period in jail continue for years. Just three days of detention has an average cost of $29,000 over the course of an individual's working-age life. The plaintiffs in Urquidi spent at least five days in jail. During detention, plaintiffs (and those like them) missed job interviews, lost out on wages, or risked losing their jobs altogether. These destabilizing effects from an arrest impact the thousands of people detained in Los Angeles County each day, and that instability reverberates throughout the broader community.

Detention also has severe impacts on health, especially in Los Angeles' squalid and unsafe facilities. Jails are vectors of disease, and detention exacerbates both mental illness and substance abuse disorders. Tragically, many people die in jail, including those who have been neither convicted nor formally charged with a crime. Already this year, at least ten people have died in LASD facilities.

Plaintiff Phillip Urquidi lost access to his prescription medications during his time in jail and was held in a cell with bedbugs. His car, where he had been residing, was impounded because of his arrest. The fees required to retrieve his car had grown during Mr. Urquidi's time in detention, and he could not afford them, potentially exposing him to the further health impacts of unsheltered homelessness. Neither public safety nor Mr. Urquidi's personal safety were served by his detention.

It's striking that Los Angeles' policy was not that Mr. Urquidi or any of the other plaintiffs were too dangerous to return home after their arrest. Rather, if they had had the money to post bail, they all would have been free to go.

In ordering LAPD and the LA Sheriff to stop enforcing the bail schedules, the Superior Court correctly recognized that to justify their policy of detaining arrested individuals based solely on their wealth, the defendants needed to demonstrate that this bail system was the least restrictive means of furthering a compelling interest. But they were unable to do so because, as the Court recognized, the bail schedule is not "reasonably designed, much less narrowly tailored" to reduce new criminal activity or increase court appearances.

Both arrested individuals and the broader community are safer when people can continue their lives with their families, quickly return to work, and maintain their own health until their next court appearance. And less restrictive alternatives to cash bail like court reminder texts are readily available and far more effective at ensuring appearance in court. Ending cash bail and reducing jail populations can also free up resources for more effective interventions, including transportation and housing support. As plaintiffs' complaint notes, taxpayer dollars are currently spent on unconstitutionally jailing people who cannot afford the preset cash bail amounts.

As this case moves forward, the parties will need to work together to develop a better, more permanent system for Los Angeles that does not punish people for their poverty or unnecessarily detain people who are presumed innocent. The Superior Court's preliminary injunction order was a thorough, fair, and necessary step to halt an ongoing constitutional crisis. It conscientiously applied the appropriate tests and correctly concluded that "it would be an abuse of the court's discretion not to enter" a preliminary injunction.

This ruling should be applauded by anyone with an interest in protecting both the Constitution and public safety.


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