Pre-Trial Custodial Reform the Key to Making AB 109 Work

Law enforcement agencies continue to complain that California’s realignment policy under AB 109, which transfers jurisdiction to the counties for non-violent and non-dangerous offenders, is not working.

In a report two weeks ago, KCRA in Sacramento cited that “a growing number of law enforcement officials are saying it’s time for California to overhaul realignment — and to stop dumping dangerous felons from state prison into local counties.”

“We do not have the facilities to house all these inmates,” Yolo County Sheriff Edward Prieto told KCRA.

“Well, we make room, which means we release other individuals,” Sheriff Prieto added.

KCRA reported, “In Yolo County, that means releasing up to 2,500 low-level offenders, to make room for others considered a more serious risk.”

But law enforcement often presents this problem as though the only solution is to end realignment, rather than changing incarceration policies.  As the Vanguard has reported a number of times, one of the biggest issues is that the bulk of those in the custody of county jails are not realignment transfers, but rather people who are being held in custody, having not been convicted of a crime.

“As sheriffs have readily admitted, county jails are not full of individuals who have been convicted of crimes, or even individuals thought to present a high public safety risk to the community,” the ACLU reports.

A recent report by the ACLU shows that over 50,000 of 71,000 Californians held in county jails across the state on any given day have not been convicted of any crime.  Rather, 71% of county jails’ average daily population are awaiting trial.

“Because the state will no longer take most people convicted of low-level felony offenses into state facilities, there is a common-but mistaken-perception at the local level that jail construction is essential,” the ACLU reports.

“High rates of pretrial detention are a threat both to public safety and civil liberties,” the report continues. “People with financial resources are able to get out of jail and return to their jobs, families, and communities. People who are unable to pay for bail or raise the necessary collateral, however, must stay in jail awaiting a trial date that could be months away. Or, they may more readily decide to accept a plea bargain as a means of getting out of jail.”

Often these people end up being released on probation or alternative work program.  They are held there, pre-trial, as non-violent and non-dangerous offenders who will never be sentenced to a single day in prison.

“These results have nothing to do with public safety. They have everything to do with wealth and poverty. People with money are able to buy their freedom while poor people cannot,” the report continues.

The ACLU concludes: “Efforts to create new jail capacity not only ignore the utterly failed state prison expansion and overcrowding experience; they also turn a blind eye to the reality of jail overcrowding in California and to the new powers given to counties to better manage their jail populations. Rather than expand jail capacity, counties should implement evidence-based practices to manage both pretrial and sentenced populations.”

Polling from late September by the Tulchin Research found that a year into realignment, “Voters believe our elected officials should invest much more into alternatives to incarceration than they are doing now and they do not want taxpayer dollars used to build more prisons and jails.”

The polling found that voters in California strongly support reforming pre-trial release policies to require supervised monitoring in the community instead of jail while awaiting trial, and they are willing to hold elected officials accountable for not supporting this reform.

Voters fundamentally believe that “our prisons and jails are overcrowded and we should find other ways to hold people accountable for non-violent offenses”

The polling found, “A solid majority of voters (70 percent) favors allowing courts to require supervised monitoring in the community for people charged with non-violent offenses instead of jail while awaiting trial.  In fact, twice as many voters strongly support this reform than oppose it in total (39 percent strongly support this proposal compared to 19 percent who either strongly or somewhat oppose it), with the remaining 11 percent undecided.”

California Forward, a nonpartisan, nonprofit organization that seek moderate governmental reform, published a report in late September arguing, “While the focus over the past year has rightly been on aiding the reintegration of those transferred back to county care via AB 109 into society so that they return to normal functioning instead of back behind bars, it’s important not to lose sight of the large number of pre-trial detainees which comprise the bulk of any given jail’s population on any given day.”

Their report argues, “Realignment also creates an opportunity for counties to examine new governance models that will help them achieve better outcomes in other areas of local government.”

“Many defendants who are considered low risk for flight and to commit a new crime are detained in jails because they cannot afford bail. The higher rate of pretrial detention coupled with plans to allocate considerable funds to build and operate new jail beds are reasons for counties to carefully consider whether establishing a pretrial program could reduce cost while maintaining public safety,” California Forward’s report finds.

They argue, “Making pretrial release decisions based on a detainee’s risk and needs, versus their ability to post bail, is key to improving public safety and offender outcomes.”

Indeed, many California counties have “significantly reduced their need for expensive jail beds by implementing pretrial programs that use assessments to determine risk and then release detainees who are low risk for flight and committing new crimes on own recognizance (OR) or an OR bond with some form of supervision.”

“This report details successful alternatives to the detention of low risk pretrial defendants,” said Lenore Anderson, Director of Californians for Safety and Justice. “We encourage local officials to explore and examine options that may both save their county money and provide better outcomes that in the long-run will directly benefit their communities.”

“It’s important for county agencies and local officials to recognize that there is no one-size fits all solution to realignment,” said Sharon Aungst, the Director of The Partnership for Community Excellence (PCE) in California Forward..

“By combing national best practices with what was learned from the five counties featured in the study, the PCE and California Forward hope to provide a holistic approach to changing how California’s criminal justice system conducts itself in this area,” their release argues.

“The experience in these five counties demonstrates that California can earn a new reputation – for reducing costs and reducing crime by focusing on outcomes and putting in place strategies that work,” said Jim Mayer, Executive Director of California Forward.

A review of the pretrial programs in five California counties (Marin, Santa Clara, Santa Cruz, San Francisco and Yolo) found that all had positive outcomes related to the number of pretrial detainees in jails, defendant court appearance rates, and new crimes committed.

A recent study of Santa Clara County’s pretrial program concluded that the program saves the county $32 million per year.

California Forward’s report cites success and progress in Yolo County under a Byrne Grant for $2.76 million, awarded by the federal government for a two-year implementation of a new pretrial services program.

“The pretrial program was intended to help relieve overcrowding, which has historically been an issue for the Yolo County Jail given the federally mandated population cap. The program also was built to assess the value of utilizing a validated risk assessment and to provide direct supervision and services to pretrial defendants in the community,” the report notes.

Ongoing data has been collected and analyzed as the result of the grant.

“An outside consultant’s analysis found that defendants in the pretrial program had a 92 percent court appearance rate and 95 percent did not commit new offenses. The court accepted 90 percent of all recommendations from the program. According to the court, those released on SOR would not have been released at arraignment without the program. Pretrial services has acted as a relief valve in certain instances where defendants could not be held at the jail for medical reasons,” the report found.

The question is whether this kind of funding can be extended and the program expanded to help alleviate the influx of transfers from the prison system.

—David M. Greenwald reporting

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