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Santa Clara County court changes warrant jailing policy criticized as punishing poverty

Pilot program allows indigent defendants wanted on low-level warrants to schedule court dates without first having to surrender to jail custody

Robet Salonga, breaking news reporter, San Jose Mercury News. For his Wordpress profile. (Michael Malone/Bay Area News Group)

SAN JOSE — The Santa Clara County Superior Court has resumed allowing people who are wanted on low-level warrants to get a court date without first having to spend time in jail if they can’t afford bail.

The shift, made this week, is accompanied by a new court calendar reserved for people who discover they are the subject of bench or arrest warrants, and until now had to submit to jail booking — and possible detention — just for the chance to argue to a judge why they shouldn’t be in custody.

According to the court and attorneys involved in shaping the new policy, the change had been in the works for several months. The issue gained added public pressure in July when the ACLU and the Stanford Law School Criminal Defense Clinic sued the court over the previous practice.

The plaintiffs — led by a man who discovered he had a warrant for a minor offense, then spent three days in jail only to be released at arraignment — called the system a “bail or jail” test that unfairly burdened poor people.

“Our hope is that this allows people to avoid truly unnecessary incarceration,” said Emi Young, a staff attorney at the ACLU Foundation of Northern California. “That’s something that never should have happened. It was extremely harmful to individuals and was bad public policy.”

The Superior Court declined to offer any comment other than to assert that the lawsuit was not the catalyst for the policy change.

Under the new protocol, people who learn they are wanted for a warrant now have the option, through an attorney, to request an arraignment date on the court calendar. They would still have to submit to an “informal booking” requiring a photograph and fingerprint recording, but they would head to court from there instead of being faced with posting bail or going into jail custody. In its initial stages, the reserved calendar for these cases will be on the second and fourth Mondays of the month.

A judge still has the final say on whether someone will be released, based on a person’s individual case and history. The kinds of cases on this calendar will typically involve minor and nonviolent offenses for which there is a good chance that someone will be ordered released while their case is adjudicated.

Meghan Piano, a county deputy public defender who was involved in drafting the new protocol — joined by representatives for the court, pretrial services, the district attorney’s office and the sheriff’s office — said the change is an important step toward leveling court access.

“Prior to this calendar, if you were poor and could not post bail, you sat in jail, whereas your wealthy neighbor would never step foot into a cell,” Piano said. “What matters is that we are here addressing this gaping hole of inequity.”

In several ways, this new calendar is a return to form. A similar practice was instituted as an emergency measure near the start of the coronavirus pandemic in 2020. But in July 2022, Criminal Division Supervising Judge Daniel Nishigaya sent an email directive to judges stating that continuing to calendar unserved arrest warrants created an “administrative difficulty” that muddied recording, tracking, and reporting of cases.

Brandon Cabrera, supervising deputy district attorney for his office’s court diversion and mental-health unit, said a series of meetings followed in which there was a consensus to move away from forcing jail stays for people whose situations meant they would likely be released by a judge anyway.

“We got all the right people finally together to have a conversation about this,” Cabrera said.

Cabrera said that led to discussions about how to tackle those “administrative difficulties,” which ultimately led to the court agreeing to reserve a court session on two Mondays a month, when the arraignment calendar is the least busy, and the sheriff’s office agreeing to staff those Mondays at the county jail specifically to handle the warrant bookings.

What resulted, partly at Piano’s urging, was a “one-stop shop” system in which someone could get booked at the jail and go to court on the same day to see a judge and argue for release.

The new system is currently in a pilot phase, starting with one case this past Monday, and continuing with a full 10-case calendar Nov. 27.

Piano, who supervises the Pre-Arraignment Representation and Review program at her office, said she is already getting a flood of inquiries from people about the new court calendar.

“Just in the past week I have received numerous phone calls from people who really want to take care of their case but are petrified, and rightfully so, of having to sit in custody while they do so,” she said.

Both Piano and Silicon Valley De-Bug, a South Bay civil-rights group that was a plaintiff in the ACLU-Stanford lawsuit, point to the destructive effects even a short jail stay can have on indigent people.

“It’s this unexpected complete interruption in life. All the main staples of what people have to hold on, their housing or their job or their family situation, they get ripped away from all that,” De-Bug cofounder Raj Jayadev said. “Even if the jail stay is only a couple of days, some of those things might never come back.”

Cabrera added that the new policy helps streamline the court system by incentivizing people to resolve their warrants, and allow cases to move along rather than wait for an unserved warrant to get activated by a happenstance encounter with law enforcement.

“If we can avoid someone waiting two to three days in jail and we know they don’t need to be there, this is a perfect solution,” he said.