California set bail at $0 for most non-violent crimes during the COVID-19 pandemic. But an exception was left for looting meaning those in LA could be jailed as the infection spreads.

• Los Angeles County District Attorney Jackie Lacey said this week that she will be setting bail for defendants accused of looting.
• In April, California's Judicial Council said most non-violent crimes should come with $0 bail in order to reduce jail populations during the coronavirus pandemic.
• The council provided an exception for "looting," however, it's ultimately up to prosecutors to decide how to charge people and whether or not to require bail for non-violent offenses.
• Former San Francisco District Attorney George Gascón, who is challenging Lacey in November, said he supports accountability for crimes committed but that pre-trial detention for theft poses a public health risk during a pandemic.

People accused of looting who are arrested in the nation's most populous county will be treated like violent criminals and denied the benefits of a zero-cost bail policy meant to limit the spread of the coronavirus.

"Looting is different," Los Angeles County District Attorney Jackie Lacey said Tuesday, explaining that in case of theft during a state of emergency "bail will be set."

"Those cases are not going to be treated as misdemeanors," Lacey told public radio station KPCC. Lacey, who is up for reelection this November, is a regular target of Black Lives Matter protests, and her husband pulled a gun on one demonstration outside her home.

"Those cases will be evaluated for felony filings," she said, adding that there could be exceptions, such as for people who "steal food because they're hungry."

In April, the Judicial Council, a statewide body that establishes guidelines for California's justice system, adopted an emergency rule, setting bail at $0 for misdemeanors and low-level felonies, a policy intended to reduce jail populations amidst the threat of COVID-19.

But it left an exemption for "looting," which in a time of civil unrest — or public health emergency — can be construed as any act of theft. This change in definition would deny those accused of the crime from getting out of jail at no cost. Those who cannot afford to get out, then, could be confined in a cell until their trial.

Even before the latest unrest, which has seen looting in cities across the country, some prosecutors were using that exemption as a loophole.

Upcharging during the coronavirus

Birgit Fladager, district attorney for Stanislaus County in Central California, announced in a press release that anyone who burglarized a store "could be charged with looting," allowing bail to be set and the accused to be further detained, HuffPost reported in mid-May.

In Los Angeles, the approach was more discrete.

In an April 14 email obtained by HuffPost, Deputy District Attorney Michael Fern noted that theft involving property worth more than $950 could be treated as felony looting, whether or not it's connected to a crisis. He added, "though we would probably want to be able to articulate some connection, such as how the theft was aided by decreased vigilance due to depleted law enforcement resources, business closures, or sheltering-in-place."

Greg Risling, a spokesman for the LA district attorney, told Business Insider he could not say how many people Lacey's office has charged with looting.

But Los Angeles Police Chief Michel Moore said Tuesday that about 200 people had been arrested for looting or vandalism; more than 3,000 people have been arrested in the city of Los Angeles. Across Los Angeles County, another 61 people were arrested for looting Wednesday night.

"Looting is an offense that does not qualify for zero bail pursuant to the Judicial Council's order," Risling said. He added that the district attorney will "fairly evaluate every case on its merits and file all appropriate charges supported by the facts."

The Judicial Council could amend its guidance, spokesperson Merrill Balassone told Business Insider, noting that the current "statewide emergency bail schedule sets presumptive bail at $0 for those accused of misdemeanors and non-violent felonies to safely reduce jail populations during a public health crisis."

But there has not been a move to amend it, and regardless of the council's decision, a local prosecutor concerned about a pandemic could pursue alternatives to extended pre-trial detention.

'Why the hell not just have a computer charge everybody?'

Lacey's electoral challenger in the fall, former San Francisco District Attorney George Gascón, agrees that each case must be evaluated on its merits — some "loot" because the opportunity presents itself, while for others it's a business. For the latter, though, bail will never be a problem, he says; it is the indigent defendant who will have trouble posting $50,000.

"You cannot place an entire community at risk of contracting a deadly virus because somebody was looting," Gascón told Business Insider. He accused Lacey of catering to the demagoguery of "law and order" without consideration for the effectiveness, as a deterrent, and the impact on public health. And he maintained that she has a considerable degree of choice in the matter.

Lacey could, for example, defer prosecutions, so that people need not wait behind bars where they might contract — or spread — the coronavirus. And it is ultimately her office's call on what the charges will be, and whether or not to extend a zero-bail policy during the pandemic.

"My point is not giving people a pass," he said. "The point is that as human beings, as thinking, logical people — and especially people that are placed in these very high levels of responsibility where you can use so much discretion — you have to be thoughtful and humane about the way you apply the policy and the way that you apply discretion. Otherwise: Why the hell not just have a computer charge everybody?"

One group that Lacey, the first woman and first African-American to serve as LA district attorney, hasn't charged often: the police, even when their own boss recommends prosecution.

In 2016, former Los Angeles Police Chief Charlie Beck publicly requested legal consequences for an officer, Clifford Proctor, who killed 29-year-old Brendon Glenn, an unarmed homeless man, during a stop in Venice. The Board of Police Commissioners, a historically conservative body said the killing was unjustified, with Proctor's own partner unable to explain why shots were fired.

Two years later, the county's top prosecutor announced she was declining to press charges based on the same reasoning rejected by others: that "Proctor may have reasonably believed that Glenn was reaching for his partner's gun."

'Traditional punitive paradigms'

Nikhil Ramnaney, president of the Los Angeles County Public Defenders' Union, told Business Insider that when it comes to recent arrests, be it for protesting or theft, he's troubled by the lack of transparency from Lacey's office. Courts have been closed or operationally limited amid both the pandemic and the civil unrest, "so we haven't had, as attorneys or public defenders, the opportunity to review the circumstances of the legality or any major issues with discretionary filing," he said. "The DA could easily provide us that information."

He's also troubled by the emails that circulated in April, showing Lacey's staff weighing the option of increasing charges, from misdemeanor theft to felony looting, to justify detention without trial.

"I think we have to realize the conditions in jail and how unprecedented they are," Ramnaney said. "We have close to a 20% infection rate. We have 6,000 people in quarantine. We had our first death in custody. And just this last week we had our first public defender death."

At Men's Central Jail in downtown Los Angeles, nearly 60% of asymptomatic inmates in one dorm tested positive for COVID-19, the Los Angeles Times reported.

"Electronic monitoring, community support — there's plenty of other ways to ensure [justice] rather than putting people unnecessarily in jail, and it doesn't seem like we're interested in pursuing those solutions or thinking outside of our traditional punitive paradigms," he said.

Ramnaney also maintained that Lacey, due to the lack of police prosecutions under her watch, has helped instigate the current unrest.

"Jackie Lacey has contributed to this culture of unaccountability," he argued. "She had a responsibility to swiftly investigate and appropriately bring charges against individuals [in law enforcement] who have committed crimes, and she failed to do so. And I think people are tired of waiting — and they're tired of the traditional, democratic expressions like voting."

On Wednesday, thousands of Angelenos marched to the district attorney's office in downtown LA. "Jackie Lacey must go," they chanted.

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