California courts' decision could force more people to stay behind bars during pandemic, critics say

California's Judicial Council dramatically restricted speedy trial rights during the COVID-19 emergency, drawing swift criticism from public defenders and the American Civil Liberties Union.

During an emergency special meeting Saturday, the Judicial Council unanimously voted to extend statutory deadlines that govern a host of due process rights. In other words, the council, which oversees the courts, made a decision that could keep more people behind bars during the coronavirus pandemic, which critics say will increase the risk of COVID-19 infections at the jail.

What that means is that those who are arrested or waiting for a court date will have to wait longer in custody. For example, someone who is waiting to be arraigned might now have to wait 7 days, instead of 48 hours, to get his or her first court hearing. 

“The right to a speedy and public trial is the bedrock of the U.S. Constitution and is one of the founding principles of this country,” Alameda County Public Defender Brendon Woods said in a statement. “Losing that, especially after the emergency has passed, is something that should alarm every single person in California."

In a letter, the ACLU also questioned whether this move is legal and said the lengthier stays in custody will negatively affect poor people and people of color. 

The action by the Judicial Council is confusing, as Alameda County Superior Court just touted its ability for enhanced remote video conferencing during the outbreak.  

This move also ensures that the wait time will increase for those arrested, which contradicts what local jails have been doing: Releasing inmates early to lower the number of people who are crowded together.

The Judicial Council rationalized its decision by citing the fact that "courts are clearly places with high risks during this pandemic" because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in excess of the numbers allowed for gathering under current executive and health orders.

"Many court facilities in California are indeed ill-equipped to implement social distancing and satisfy other public health requirements necessary to protect people involved in court proceedings and prevent the further spread of COVID-19," the Judicial Council wrote. "Indeed, over the past two weeks media reports have roundly criticized courts in California and elsewhere for not ensuring safe social distancing for those coming to our courthouses."

In one California court, the Judicial Council noted that three court reporters contracted COVID-19. The council noted that not all courts are tech-savvy. 

Here is a list of what the Judicial Council, a body of appointees, voted on to extend. 

  • For arraignments, extends time period from 48 hours to 7 days. Arraignment occurs after police arrest someone and prosecutors charge him with a crime. If the person cannot hire an attorney, a judge appoints a lawyer – usually a Public Defender -- to represent the person and sets bail if it hasn’t already been set or releases him on his own recognizance. The person also can enter a plea, which starts the speedy trial clock ticking.
  • For in-custody preliminary hearings, extends time period from 10 court days to 30 court days. A preliminary hearing, also called a preliminary examination or probable cause hearing, is when a judge hears some of the evidence against a person and decides whether the case should continue to trial. Under normal rules, if the preliminary hearing isn’t conducted within 10 days, the person must be released.
  • For in-custody misdemeanors, extends time period for jury trial from 30 calendar days to 60 days. Under normal rules, if the trial doesn’t start within 30 days, the case must be dismissed.
  • For felonies, extends time period for jury trial from 60 calendar days to 90 days. After preliminary hearing ends, prosecutors have 15 days to file the next stage of prosecution, which is called the “information.” After the defendant enters a plea to that, he can invoke his speedy trial rights. 

The Judicial Council announced the proposal Friday and allowed one day for comment. And although the council broadcast its live deliberation in a special phone call, no members of the public nor public defenders were offered the chance to speak and the comments submitted by numerous groups including the California Public Defenders Association and the ACLU went unaddressed.

As Woods' office explained it, the Judicial Council’s action Saturday follows extraordinary orders by California Supreme Justice Tani Cantil-Sakauye.

On March 23, she stopped all jury trials for 60 days and added 60 days to existing speedy trial rights. Because statutory rights already guaranteed a speedy felony trial within 60 days, that means the new deadline for a felony trial was doubled. And those 120 days don’t account for the additional time spent waiting for arraignment and preliminary hearing.

In addition, Woods' office pointed out that the Judicial Council’s action Saturday also curtails speedy trial rights not just for the ongoing emergency but also for 90 days after the emergency, meaning criminal defendants still will have their statutory rights restricted even after the government lifts shelter-in-place restrictions and courts resume normal operations.

In Woods' opinion, no one charged with misdemeanors, property crimes, failures to appear nor nonviolent and low-level felonies should be in jail right now. In addition, people serving jail time for those offenses – or serving short sentences in connection with serious cases – should be released.

So far, the Alameda County Public Defender, as well as public defenders in other counties, have negotiated with prosecutors to try to release people because of the danger of infection in jail. When those negotiations fail, the Public Defender's Office turns to judges and court hearings to try to get people out.

In Alameda County, courts restricted operations on March 17 and are scheduled to lift the emergency order and reopen April 3, however it is extremely likely they will remain closed longer.

Special courts are running twice a week for arraignments and daily for preliminary hearings in felony cases where defendants have not given up their speedy trial rights.

The Judicial Council’s action authorizes Justice Cantil-Sakauye – who also chairs the Council -- to approve orders submitted by county presiding judges asking to modify existing speedy trial rights, which are set by statute.

Already in this emergency, Alameda County Presiding Judge Tara Desautels has closed courts to the public and has asked the Chief Justice to approve orders extending the deadlines for some speedy trial rights.

It’s unclear what further action Judge Desautels may request following Saturday’s action.

The Judicial Council acted after Gov. Newsom made an executive order Friday granting them unprecedented new powers in light of the ongoing virus emergency.

The Judicial Council is in charge of administering California courts and promulgating new court rules.

Normally, only the state Legislature can change statutes.

Woods said he is reviewing legal challenges to the Judicial Council’s action. 

Lisa Fernandez is a reporter for KTVU. Email Lisa at or call her at 510-874-0139. Or follow her on Twitter @ljfernandez