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Barred from Freedom: How Pretrial Detention Ruins Lives 

Wednesday, Nov 21 2012
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The legal system treated Garcia as a guilty man before it proved him innocent.

"That we're going to punish a person before they're even convicted to keep them off the street — I believe that's offensive to the presumption of innocence," says Public Defender Jeff Adachi. "If your freedom depends on how much money you have — a fact that has no correlation to the charges against you — that system begins with a fundamental inequality based on wealth."

Dorton, Frazier, Garcia, and many others ended up stuck in jail not because of any single lapse in the justice system, but because of a convergence of factors. Law enforcement efforts to make San Francisco less appealing for out-of-town criminals led to an across-the-board increase in bail rates in the late 1990s. Lobbying from the bail bond industry pressured state politicians to reject legislative efforts to encourage OR releases, which would cut into bondsman profits. Prosecutors' habit of throwing a filing cabinet's worth of charges at a defendant to induce a plea bargain led to stacked bail. Public defenders' long case lists led to longer court proceedings. Cops gave the accusers the benefit of the doubt, and the judges gave the cops the same thing. The lack of background information provided to judges at arraignment made OR releases less worthwhile gambles for them.

"They treated me like I was already guilty," says Dorton. "Like you're nothing. Nothing but paperwork."


To Scott MacDonald, criminal justice policy is all about managing risk. In any pretrial detention system, there is the risk of jailing innocent people and setting dangerous people loose. And the latter tends to make headlines more often than the former.

"The problem with the system is that we're risk-averse," says MacDonald, Santa Cruz County's chief probation officer. "If we ran our lives the way we traditionally run the justice system, we probably wouldn't get out of bed in the morning. The culture is, 'When in doubt, lock them up.'"

MacDonald was assistant chief when Santa Cruz faced an overcrowded jail crisis in 2004. There was talk of constructing a new complex — an expensive endeavor. From working in the juvenile justice department in the '90s, MacDonald had seen data-driven risk assessment policy used to keep youth defendants out of detention before trial. Research into the defendant's background helped officials determine which ones were most likely to skip a court date. So, in 2005, MacDonald ushered a similar risk assessment tool into the adult system, using evidence-based methods. With the jail problem becoming a fiscal problem, he faced little resistance.

So when a defendant is booked into Santa Cruz County jail, the Probation Department interviews him, calls his employer and relatives, studies his criminal history, and contacts the victim. The investigation focuses on the risk factors in a defendant's life: Is he employed; does he have people looking out for him; does he have a stable residence; does he have a family he provides for; does the victim fear his release?

Officials enter the facts into a formula, which spits out a score. That score determines the type of recommendation the probation department makes to the judge. In addition to OR and detention, there are multiple levels of supervised release — including daily phone check-ins, mandatory drug counseling, and electronic monitoring — overseen by the probation department.

In the years since, the jail population in Santa Cruz's main facility dropped by 25 percent. The Sheriff's Department closed one of its jails, saving the county around $1 million a year. Fewer than 5 percent of released defendants were charged with another crime before their court date. And 91 percent of them appeared for trial — though most successful bail bond companies secure court appearances at a rate several percentage points higher.

While the risk assessment wouldn't necessarily set guys like Dorton free, it could ensure them a fair shot based on facts. MacDonald says that 21 other counties, from Illinois to Oregon, have contacted him for tips on implementing pretrial risk assessments. Over the past decade or so, Marin, Napa, Sonoma, Yolo, and Santa Clara counties have installed similar systems. San Francisco has not.

The U.S. Supreme Court order for California to fix its overcrowded prisons has sent a rush of inmates to county jails over the past year, spurring local and state attempts to reduce pretrial incarceration rates. State Senate Bill 210 would have mandated that every county establish a pretrial risk assessment body, in an effort to encourage more OR releases. The California Bail Bonds Association (CBAA), one of several industry lobbyist groups that have together donated more than $400,000 to state campaigns since 2000, sent legislators a letter explaining that the organization "strongly opposes" the bill. Law enforcement officials in southern and central California also rejected the policy. By September, CBAA's website noted that S.B. 210 "died on Assembly Floor, thanks to CBAA's opposition efforts."

San Francisco, which boasts one of the lowest incarceration rates in the state, has been able to follow the realignment plan without pain. Still, every local law enforcement official has supported pretrial detention reform. They all signed the 2011 realignment "Implementation Plan," which recommended to the Board of Supervisors that the sheriff administer electronic monitoring for certain pretrial inmates. The policy has not been implemented.

"We're still working through that process," says Gascón.


"I don't feel like my life's back to normal," says Dorton, a month removed from his acquittal. He sits in the living room of a friend's house, where he and his brother now stay. Dorton's thinking about leaving town.

"I gotta start from square one. And I'm angry now."

He'd been a few months away from paying off his used BMW. But after the cops took it to look for clues, he couldn't afford the impound fees — around $2,000 a month — and didn't have the income to make the car payments anyway. Dorton still has his motorcycle and his mattress, though, among the few possessions his brother and girlfriend were able to salvage — most everything else ended up on the curb after the landlord kicked him out. The credit card late fees have piled up and the missed car payments have shattered his credit rating.

About The Author

Albert Samaha

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