The ACLU and a Stanford legal clinic are suing the Santa Clara County Superior Court, alleging it forces poor people wanted on low-level warrants to be jailed just so they can get in front of a judge who will likely decide they don’t belong in custody.
The lawsuit filed Monday contends that the South Bay is out of step with a multitude of other California county courts that allow people wanted for non-violent arrest warrants to voluntarily appear in court, without first going to jail, to sort out their warrants as well as their eligibility for remaining free.
As a consequence of the Santa Clara County court policy, the lawsuit asserts, people with outstanding and unserved arrest warrants, and who can’t afford their bail amount, must surrender and be admitted into jail before they can get assigned a court date to argue why they should be out of custody.
The suit lists Nikolaus Jackson O’Neill Rogge and the civil-rights group Silicon Valley De-Bug as plaintiffs.
Carlie Ware Horne, a former county deputy public defender who is now clinical supervising attorney at the Stanford Law School Criminal Defense Clinic, said the court has created a two-tiered system where people with the means to post bail for these warrants — typically in and around the range of $10,000 to $25,000 — can opt out of having to go to jail before they get an initial court date.
“A policy that excludes people from court unless they have money or are willing to give up their freedom doesn’t make any sense,” Ware Horne said in an interview. “It makes sense to adopt a policy that encourages people to take responsibility even if they’re poor, come to court, and have due process.”
Emi Young, a staff attorney with the criminal justice program for the ACLU Foundation of Northern California, added: “Equal access to the courts shouldn’t depend on your ability to pay.”
The county Superior Court declined to comment on the lawsuit Monday. But in a previous statement to this news organization — given in June after the plaintiffs sent a letter to the court in demanding the end of the jailing policy — the court argued it was on firm legal ground, noting that “the same challenge was already presented to the Sixth District Court of Appeal which denied the request.”
The lawsuit’s objective is to compel the Superior Court to rescind the jailing policy, and the plaintiffs argue that prior to its institution in July 2022, pandemic-fueled zero-dollar bail and jail amnesty measures showed the system could manage allowing out-of-custody defendants to get dates onto the court calendar without first having to post bail or go to jail.
In an email directive to criminal court judges — a copy of which is included in the lawsuit — Criminal Division Supervising Judge Daniel Nishigaya wrote that continuing to calendar unserved arrest warrants created an “administrative difficulty” and prevented the collection of data points “that the court needs to respect in order to allow all agencies to comply with valuable Department of Justice reporting requirements, minimize error rates, and maintain the integrity of criminal record information.”
Plaintiffs also point to policies in other jurisdictions to bolster their case: Out-of-custody defendants with active warrants can schedule a same-day court appearance with their criminal clerk’s office in Contra Costa, Monterey, Napa and Sonoma counties. County courts in Riverside, Alpine, Colusa, Inyo, Lassen, Merced, Trinity and Nevada counties carve out specific days and times each week for people to address or clear active warrants.
O’Neill Rogge is held up as the lone individual plaintiff in the new lawsuit, which recounts his experience of learning he was the subject of a non-violent arrest warrant while being backgrounded by a South Bay job-training program. The lawsuit states after he tried to request a court date with the local criminal clerk’s office, he was told that he had to post $10,000 or surrender to jail custody.
According to the lawsuit, O’Neill Rogge eventually surrendered at the county jail. He was held there for three days, which included him being transported to and from his court arraignment during which a judge cited his lack of criminal history in ordering him released on his own recognizance. And by the time his release was processed, he was let out of jail at 2 a.m. with no public transportation available to him to get home, according to the suit.
“I had never been arrested before and was scared,” O’Neill Rogge said in a statement. “It’s unfair that I had to go to jail just because I couldn’t pay but if I’d had the $10,000, they would have given me a court date and sent me home.”
The lawsuit states that O’Neill Rogge’s experience speaks to the potentially ruinous effects that even a short jail stint can inflict on people’s lives. That includes a “humiliating, invasive, and intimidating” booking procedure that could include pat-down and strip searches and intrusive questioning about their personal lives, and harmful impacts on parental and caretaking responsibilities and employment.
“Even a few days of unnecessary incarceration can cause incredible harm, both for the individual and the broader community,” said Raj Jayadev, co-founder of plaintiff Silicon Valley De-Bug, which provides support to indigent defendants and other marginalized groups navigating the court system. “We’re often contacted by people who learn they have an arrest warrant and want to be proactive about dealing with the charges but fear turning themselves into the jail because they are caretakers, are working, or have other responsibilities that will be put at risk.”
