Reclassification as a Means for Integration: The Positives of Prop 47

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If you are in jail, imagine having your prior felony reclassified as a misdemeanor so that you no longer face six years in prison for stealing $10 worth of merchandise (anecdote to be shared below). Or, if you are released in society, imagine having your criminal record adjusted so you are no longer barred from receiving federal welfare, student grants, or medical care. (PDF pages 9-10). You also are no longer excluded from employment in care facilities, including child-care jobs, and you might no longer face automatic disqualification if potential employers discover your conviction records. (Although technically it is illegal for an employer to discriminate against an individual based on an individual’s criminal record, it certainly still happens). Further, if you are an undocumented immigrant, a parent, and facing deportation, your adjusted criminal record may qualify you for protection under Deferred Action for Parental Accountability (DAPA). (PDF page 5). Also, if you are undocumented, facing deportation, and entered the United States before you were sixteen, your adjusted criminal record may qualify you for protection under Deferred Action for Childhood Arrivals (DACA). (PDF page 5).

All four groups of people described above did not have these freedoms or protections prior to Prop 47’s passage. In addition to reducing prison and jail populations along with infrastructural costs, Prop 47 strove to change certain individuals’ felony records, improving the social and financial status of these individuals who had previously committed non-violent drug possession or petty theft crimes. Reclassification is not instantaneous, but it helps nonviolent offenders receive the financial support and employment opportunities necessary to become more fully integrated in society.

Continue reading “Reclassification as a Means for Integration: The Positives of Prop 47”

Will Dollars Bring the Right Change to Santa Clara Jail?

Main-Jail1-772x350-2Santa Clara County reports 50% of its jail inmates have mental health issues (see Augmentation of Behavioral Health Services to Inmates in County Jail, p. 2). The news reveals that Santa Clara County has a major problem effectively and humanely handling these individuals. This begs the question: how exactly are mentally ill individuals treated in the Santa Clara criminal justice system? This post attempts to point out specific areas during pretrial detention where the system in our county fails mentally ill inmates, effectively punishing them before conviction and thereby exacerbating their mental illnesses and increasing their chances of re-entering the criminal justice system after release. Continue reading “Will Dollars Bring the Right Change to Santa Clara Jail?”

Brown Better Have My Money! Part 2: Who manages Prop 47’s savings?

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Prop 47 reclassified several drug possession and petty theft crimes into misdemeanors. This change permitted state prison and county jail inmates to have their sentences adjusted in order to reflect this change. Ideally, this would decrease populations in both prisons and jails, decreases that would save both the state of California and California counties money. California counties fund and manage jails whereas the state of California manages prisons. Any money saved at the county level would be kept amongst the counties.

I.  How savings were supposed to be calculated

The California Director of Finance calculates Prop 47 prison savings and transfers that money from the General Fund into the “Safe Neighborhoods and Schools Fund.” (PDF page 7). Then, the money will be distributed to local communities. 25% of the savings will go to K-12 public schools’ truancy prevention programs, 65% will fund mental health and substance abuse treatment programs, and the remaining 10% will go to the California Victim Compensation and Government Claims Board. (PDF page 8).

In January, Governor Brown released his proposed budget for the 2016–2017 year, reporting that there were 4,700 fewer inmates in California state prisons thanks to Prop 47. Accordingly, the Director of Finance calculated $29.3 million in savings that would be placed into the “Safe Neighborhoods and Schools Fund.” But many felt that this amount is too small. The Legislative Analyst’s Office (LAO), while agreeing with the 4,700-inmate decrease, disagreed with the governor’s estimate of how much housing a prisoner actually costs in California.

Continue reading “Brown Better Have My Money! Part 2: Who manages Prop 47’s savings?”

Another Tool in the Toolbox for Domestic Violence Pretrial Determinations

At the time of Laura’s death in 2013, her abusive ex-boyfriend, who was also her murderer, was out on bail awaiting trial for charges stemming from prior domestic violence attacks and threats. According to court records and family members, he previously had “allegedly beat her with a baseball bat, dragged her behind a car, strangled her until she blacked out on the floor and told her over and over how he would kill her if she ever left him.” This is one of various tragic cases we hear about each year. Alternatively, however, there have also been other cases where alleged abusers have been detained pretrial, have not been able to post bail either because it was denied or because they could not afford it, and after spending some time in jail had the charges dropped for a number of reasons.

Out of this wide range of cases there are special legal considerations at the pretrial stage for domestic violence cases due to the potential risk to the victim and the past or present association of the accused and the victim. Although our legal system in California recognizes that there must be extra precautions for the victims’ safety, in practice California does not have a validated evidence-based method to identify and manage the most dangerous domestic violence offenders while affording those others accused their due process rights during the pretrial stage. In this post I will describe the California procedures already in place when dealing with domestic violence cases, and recommend some evidence-based risk assessment tools that the courts and others involved can use. Continue reading “Another Tool in the Toolbox for Domestic Violence Pretrial Determinations”

Brown Better Have My Money! The Prop 47 Savings Controversy

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Original Prop 47 Advertisement

Photo Credit: Obey Giant, November 3, 2014

In order to pass Proposition 47, proponents needed to appeal to California voters and taxpayers. Hence, Prop 47 was entitled the “Safe Neighborhoods and Schools Act”. The proposition stipulated that its passage would save money due to the reclassification of nine felonies into misdemeanors and that these savings would be sent to local communities to be allocated for specific programs. Counties could use these funds to support substance abuse treatment programs and other mental health services for their parolee and inmate populations. In addition, counties could invest in victims’ services as well as K-12 public school truancy and dropout prevention programs. (PDF page 7).

Today, California voters are wondering if the state is filling its Prop 47 promise, the promise to spend fewer tax dollars on the punishment of nonviolent drug users and petty thieves. Voters wanted to spend more money on schools and mental health services, less money on long-term incarceration. Unfortunately, the state has recently reported that Prop 47 did not save the anticipated funds redirected to local communities.

Click here for details regarding Governor Brown’s contested report Continue reading “Brown Better Have My Money! The Prop 47 Savings Controversy”

Pretrial Detention and Legal Outcomes

“[C]lose to three quarters of a million people reside in America’s jail system…Across the country, nearly two thirds of all inmates who crowd our county jails – at an annual cost of roughly nine billion taxpayer dollars – are defendants awaiting trial…Many of these individuals are nonviolent, non-felony offenders, charged with crimes ranging from public petty theft to public drug use. And a disproportionate number of them are poor. They are forced to remain in custody – for an average of two weeks, and at a considerable expense to taxpayers – because they simply cannot afford to post the bail required.” This quote is from a speech given by the former Attorney General Eric Holder at the National Symposium on Pretrial Justice in 2011. It is encouraging to see the nation’s principal legal officer and head of the US Department of Justice acknowledging the issues of pretrial detention, especially within regards to misdemeanants. While the nine billion dollar figure noted above is concerning, the truly frightening cost of pretrial detention is the human cost. When I say “human cost”, I am referring to the negative effect that pretrial detention has on the mental and physical health, employment, and family and community interactions of those who are incarcerated. In other words, I am a referring to how getting arrested for a simple misdemeanor can destroy peoples lives and the lives of those around them.

Before we address the human cost of pretrial detention, it is important to look at why this problem exists. Why are so many un-convicted people spending so much time in county jails? Continue reading “Pretrial Detention and Legal Outcomes”

Jail Classification and How it Relates to Bail

Statistics show that the majority of county jail inmates are individuals who are awaiting trial. Understanding how people are sorted, managed and classified within the jail system is an important step in determining why this is so. Furthermore, important bail decisions and determination are often made at the time of booking and classification. An explanation of the process seems a necessary starting point to further exploration into these subjects.

So imagine you have just been arrested by the San Jose police for some crime. For the sake of this hypothetical, let’s say you stole a garden gnome worth $145 from your old English teacher’s yard. When the police stop you, they catch you red-handed with the gnome. You are handcuffed and put into a police car, and you’re driven to the Main Jail where you go down a sinister-looking ramp to what is known as Lower Booking.

Continue reading “Jail Classification and How it Relates to Bail”

Prop 47: Shorter Sentences, Reclassification, and Dispelling the Myth that It’s All for Nothing

It’s February 26, 2016 at 11:00 pm, and you have been pulled over for speeding. An officer, while using his flashlight to examine your driver’s license, notices a plastic bag with white powder on the passenger seat. He takes the bag and arrests you for committing a misdemeanor, the simple possession of cocaine. He takes you to an arresting agency where you are booked, held for up to 48 hours, and are later informed of your misdemeanor charge by a judge.  Bail is set at a misdemeanor-level price of $5,000 (PDF, page 135) and you are able to pay a bail bond company 10% of the bail in order be released with a promise to appear in court. Earlier that day, a homeless drug addict is arrested for petty theft, and is charged with her third misdemeanor. Unlike you, she cannot afford 10% of her bail and will remain in jail until she goes to court. Both of you face a county jail term of no more than six months. Cal. Penal Code § 19.

Had it been February 26, 2014, however, you both would have been arrested for a felony. Initially, the effect would have been the same: both of you would have been booked, held up to 48 hours, and then arraigned. But from then on, the circumstances would become much more severe. Bail for both of you would have been set at a higher felony-level, maybe $25,000 (PDF, page 29). Also, if either of you were found or pleaded guilty, you would have been sentenced to at least 16 months in “county jail-prison” as a non-violent felon. Cal. Penal Code § 18. See also Cal. Penal Code § 1170(h). This lengthened stay in county jail could potentially affect your physical and mental health, increasing your likelihood of recidivism. Further, upon release, the felony conviction would probably prevent you from obtaining employment in law enforcement as well as in positions involving children, the elderly, or disabled people.

Continue reading “Prop 47: Shorter Sentences, Reclassification, and Dispelling the Myth that It’s All for Nothing”

What it takes: An innovative risk-assessment tool in Santa Cruz County

Individuals accused of crimes will unsurprisingly wonder how it is that judges determine whether or not they should be granted bail and at what amount. After all, they haven’t been proven guilty beyond a reasonable doubt, and it is fair to assume that at this stage of the proceeding there is very limited information about them: their financial capacity, their community ties, or their housing and work situations. Judges are left with a difficult task in determining what the likelihood is that an individual who gets released will pose a public safety risk or fail to appear to his or her court date. Without more information, judges must either make these critical decisions in a subjective manner, based on experience and “gut feeling,” or strictly follow a set bail schedule without considering the defendant’s circumstances. Subsequently, many individuals who have a low flight and public safety risk may be detained pretrial on purely financial grounds, while high risk individuals who can afford the bail amount are released (pdf, go to page 5).

The consequences of the aforementioned approach have been dire both for society and those involved in the criminal justice system. At any moment, over 60% of the U.S. jail population is composed of pretrial detainees, including both low-risk and high-risk persons, and the estimated cost to incarcerate these individuals is $9 billion a year (pdf, go to page 5). In California jails, the average pretrial population is also about 60% of the total jail population (pdf, go to page 2). Moreover, research shows that detention of low-risk individuals makes them worse: when low-risk individuals are detained pretrial they are more likely to commit new crimes once they are released, receive longer sentences and more likely to miss their court dates. For individuals the repercussions of being detained pretrial, especially when they are low-risk, are grave since it can lead to falling behind on bill payments, missing school, losing their homes, losing their jobs, and becoming disconnected from their families and communities (pdf, go to page 15).

As a result, many at the forefront of bail reform are seeking new non-financial options to bail, and some are pushing towards objective evidence-based and cost-effective practices to help judges decide which individuals should be detained, supervised or released. Such practices include using validated risk assessment instruments that are supposed to accurately distinguish among high, moderate, and low-risk individuals to help judges make pretrial decisions based on the individual’s risk of reoffending or failing to appear to their court date. Currently, however, only about 10 percent of courts nationally use evidence-based risk-assessment instruments.

Among the places in California using these instruments is the Probation Department of Santa Cruz County through its Pretrial Services Unit. The Unit previously used the Virginia Pretrial Release Risk Assessment Instrument (VPRAI). A study comparing best practices in California states that the VPRAI examined a “defendant’s status at the time of the arrest as it relates to the current charges, pending charges, criminal history, residence, employment, primary caregiver and history of drug abuse.” Santa Cruz County, however, continues to reform its practices and has implemented a new risk assessment tool that is drawing attention nationwide. Counties, on the verge of applying or switching their risk assessment tools are interested in this tool’s success rates, operational efficiencies and implementation challenges.

The Probation Department in Santa Cruz County began the piloting of the Laura and John Arnold Foundation’s [LJAF] Public Safety Assessment-Court (PSA) on July 1, 2014. Unlike other risk assessment tools, the LJAF states that PSA only includes factors that are related “to a defendant’s criminal history and current charge [not] factors that could be discriminatory such as race, gender, level of education, socioeconomic status, and neighborhood.” According to LJAF’s research, the tool is just as predictive of risk without the controversial variables and is also time-efficient since the tool can be carried out without interviewing the accused.

About a year after implementing the PSA Court, the Santa Cruz Probation Department reported that the data was “still insufficient to complete a preliminary validation study.” Furthermore, it is difficult to analyze if it has helped in reducing pretrial detention population rates with the enactment of Prop 47 in October 2014 (Perez, 2016). While obtaining results from Santa Cruz County is difficult due to proprietary circumstances and concurrent legislation, there is valuable information for those interested in implementing the PSA Court in their counties.

The non-interview nature of the instrument has allowed Santa Cruz to increase by almost five times the number of pretrial assessments they conduct monthly (pdf, go to page 3). The length of time it takes to complete an individual PSA Court depends on the type of the case; it can range from five minutes with someone who has minimal history to twenty minutes for others who have more complicated cases (Perez, 2016). However, to minimize the potential for any errors, the pretrial services team has been working to reduce the rate in which an individualized PSA Court is completed (Perez, 2016).

According to Pretrial Supervisor Ms. Linda Perez, one of the most challenging components in Santa Cruz County was and continues to be getting others, such as judges, to accept this specific tool. Although receptive towards evidence-based practices, the challenge is because the prior tool the county relied on, the VPRAI (Virginia Pretrial Risk Assessment Instrument), “included more written information in the form of a narrative regarding the dynamic factors in the defendant’s life through information obtained in an interview” (Perez, 2016). Judges are now getting a different framework for the recommendations that does not necessarily include narrative information obtained through interviews or the same kind of focus on the current charge. The pretrial services team is finding ways to improve acceptance by presenting concise information about how the PSA Court operates to all involved in the process (Perez, 2016). In rare circumstances, “this obstacle has also been partially alleviated by the ability to include pertinent information at the bottom of the reports regarding mental health concerns, gang involvement, and other pressing issues” (Perez, 2016).

Additional challenges included modifying their electronic pretrial system to incorporate all the risk factors and inputting the outcomes of each assessment required by the Laura and John Arnold Foundation (Perez, 2016). According to Ms. Perez changing the system was a lengthy process that took about four to five months. Equally, inputting outcomes and keeping data for each assessment was more time-consuming for staff, since they previously used to keep data only on the defendants released under their supervision.

In terms of expenses, as part of the pilot process Santa Cruz County received substantial technical assistance, training and support, data analysis and oversight as well as the product itself at no cost (Perez, 2016). Although the tool itself will eventually be provided to agencies free of charge, if an agency is not part of the pilot program, getting the appropriate training and changing electronic data systems could be costly (Perez, 2016). There are no cost savings specifically through the use of the PSA Court (Perez, 2016).

The LJAF is not assisting the county anymore; however, they will get assistance to complete the full validation study. Santa Cruz County’s goal is a “75% concurrence rate; the ratio of released and detained defendants to the pretrial agency’s release and detention recommendations” (Perez, 2016). Santa Cruz County is hoping to complete a full validation study within a few months.

A common expression is that the justice system cannot keep up with technological and scientific advancements. This post is meant to both start the discussion around an innovative risk assessment tool and help others begin strategizing around potential challenges. While we wait for Santa Cruz County’s results, my next post will explore the possibility of using scientific data-driven risk assessment tools in the realm of domestic violence cases.

Implementing Risk Assessment Tools: Benefits and challenges in Santa Clara County and Santa Cruz County

After taking a training on unconscious bias and its effect on decision-making, I became intrigued about validated risk assessment tools meant to offset this effect in pre-trial determinations. These tools have been adopted nationally throughout different counties. I will be comparing and contrasting Pre-Trial Services in Santa Clara County to the Public Safety Assessment Pilot program in Santa Cruz County and their use of validated risk assessment instruments. I then want to determine how the instruments are implemented and analyze to what degree judges deviate from the recommendations of these agencies and why. I want to observe whether the prosecutor influences the judge’s decision to deny or set bail at a certain amount and whether public defenders raise Eighth Amendment “excessive bail” challenges. In the midst of this process, I want to evaluate whether the financial circumstances of the accused are ever considered—in theory or in practice.

My name is Carlos Barba and I am a second year law student at Santa Clara University School of Law. I was born and raised in Watsonville, California, a city in the south part of Santa Cruz County, predominantly comprised of low-income immigrants. I’ve witnessed how our current bail system disproportionately affects low-income individuals and their families, which is why I am interested in criminal justice reform. My goal this semester is to provide new information about common bail practices and assess the effectiveness of these practices in order to influence policy.