By Michele Hanisee
Since the Special Directives of the District Attorney were announced in his first moment in office, they have been the topic of discussion in the public and in the press. But some significant sections of these directives have been overlooked simply because their effect is not apparent to anyone without a detailed knowledge of criminal law. Without commenting on the merits of these policies we will commence a series of articles examining the intricacies of some of the directives.
Special Directive 20-06 – Pretrial Release Policy
In the same election in which the District Attorney was elected, the voters of California rejected Prop 25 which would have eliminated cash bail. Special Directive 20-06 acknowledges that the will of the voters was to continue to use cash bail. Nevertheless, Special Directive 20-06 states, “DDAs shall not request cash bail for any misdemeanor, non-serious felony, or nonviolent felony offense.”
While the directive seems simple enough from a plain-English standpoint, the average member of the public does not understand what crimes fall under the definition of “non-serious” and “nonviolent.” Felonies that qualify as “violent” are listed in PC 667.5(c). Felonies that qualify as “serious” are listed in PC 1192.7. These two sections define what crimes are “strikes” for purposes of the three strikes law. There are many crimes that are arguably serious and violent in the mind of the average citizen that are not included on these lists. Following are examples of crimes that are neither serious nor violent which thus qualify for zero cash bail under this policy:
- Solicitation to commit murder;
- Felony assault by means of force likely to produce great bodily injury in violation of paragraph (4) of subdivision (a) of Section 245;
- False imprisonment to prevent arrest such that it increases the risk of harm to the victim in violation of Section 210.5;
- Felony domestic violence resulting in a traumatic condition in violation of Penal Code Section 273.5;
- Felony use of force or threats against a witness or victim of a crime in violation of Penal Code Section 140;
- Felony resisting a peace officer and causing serious injury in violation of Penal Code Section 148.10;
- A felony hate crime with present ability to commit violent injury, or which does cause injury pursuant to Penal Code Section 422.7;
- Felony elder or dependent adult abuse likely to cause great bodily harm or death in violation of subdivision (b)(1) of Penal Code Section 368;
Molestation of a child aged 15 and older in violation of Penal Code Section 288(c);
- Sexual penetration of a mentally disabled or developmentally disabled victim, a drugged victim, or an unconscious victim in violation of subdivision (b), (d) or (e) of Penal Code Section 289;
- Sodomy of a mentally disabled or developmentally disabled victim, a drugged victim, or an unconscious victim in violation of subdivision (f), (g), or (i) of Penal Code Section 286;
- Oral copulation of a mentally disabled or developmentally disabled victim, a drugged victim, or an unconscious victim in violation of subdivision (f), (g), or (i) of Penal Code Section 287;
- Human trafficking of a minor for commercial sex acts in violation of subdivision (c)(1) of Penal Code Section 236.1.
This is not an exhaustive list. A Los Angeles Deputy District Attorney may not request bail for the above listed offenses and many others that are not specifically defined under the law as “serious” or “violent.”
Under this policy, a suspect arrested for sodomizing a developmentally disabled adult will not have to post any bail. The same is true for a suspect arrested for sucker punching an elderly Asian woman in a hate crime. At most the prosecutor can request the court to impose the “least restrictive means” which is described as anything from “no conditions” to electronic monitoring or home detention.
There are no exceptions to this policy.
Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.