An unprecedented shift in incarceration is occurring in Santa Clara County. The jail population has dropped by an average of more than half -- having gone from a peak of 4,386 people held in-custody in 2014, to barely hovering over 2,000 for the first quarter of 2021. The shrinking in-custody numbers could be attributed to a constellation of factors – some intentional decarceral efforts by the community, county, and state laws that have been developing for years, and some responses to the COVID crisis. Namely, the county employed a jail depopulation strategy last year to reduce likelihood of COVID outbreaks in the jail – such as a broader pretrial release of those detained, and utilizing a Zero Bail policy in which certain charges would have no corresponding financial barrier to release for people. And with a jail that is filled overwhelmingly by those held pretrial (meaning they haven’t been convicted of a crime, only charged) the dial which has the most impact on jail population numbers is pretrial detention. As an example of a daily snapshot - on August 31st, 2021 those who were in jail but “unsentenced” accounted for 89% of the total population.
And while the reduction in the jail population is on the right trajectory, the shrinking in-custody numbers do not necessarily equate to unconditional pretrial freedom. For the first time in Santa Clara County history, there are more people accused of a crime who are on “pretrial supervision,” rather than held in jail.
As reported by the Santa Clara County Office of Pretrial Services, in the fourth quarter of 2020, there were 2,950 people on pretrial supervision, and 2,062 people held in jail. And while certainly, the less people in jail the better for a myriad of reasons, to the individual, their loved ones, and the County as a whole -- system supervision can still represent different levels of control, surveillance, and limitations on liberty. And given the over-representation of Black and Brown communities targeted and held by the criminal court system – that means disproportionate control over communities of color, just outside the confines of a physical jail structure.
In 2019, in Santa Clara County, the Black community represented roughly 3% of the overall adult population, yet 14% of all jail bookings. And though the LatinX population made up 22% of the overall County population, they represented 51% of all jail bookings. The pretrial supervision numbers naturally mirror the same disparities - with the LatinX community being under supervision more than twice their general demographic, and the Black community being supervised at roughly four times the rate of their general population numbers.
When “Nothing” is Better than “Something”
The way pretrial decision-making works is when a person is being held, or potentially held in jail pretrial, a judge is faced with the question if they will release them on their “Own Recognizance” (OR) or on “Supervised Own Recognizance Program” (SORP) or impose money bail. The judge is supposed to consider two main themes when making their decision – safety and likelihood of returning to court. If the person is released on OR, they simply have to return to their court dates – the same as if someone had paid the money bail amount the court ordered in exchange for release. If they are put on SORP – that means there are conditions of their release that are facilitated through the Office of Pretrial Services. The conditions imposed by the court can be a spectrum – it can be calling into a pretrial staff member every couple weeks while going through the adjudication process, to drug and alcohol testing, to the most restrictive end of GPS, and electronic monitoring and home detention. If people do not abide by the conditions, it can mean they are sent back to jail.
In the backdrop of jail depopulation, the number of people under pretrial supervision went up 100% from 2019 to 2020. And perhaps the most restrictive tool of supervision – electronic monitoring – has quadrupled in the last four years. Santa Clara County is not alone in this shift – San Francisco electronic monitoring has gone up 300% in a similar time frame.
As California goes through different political convulsions trying to step away from a parasitic money bail system – many counties across the state are looking to set up or expand supervision programs. Many of these offices, unlike Santa Clara’s, are run by law enforcement. The conventional thinking is to have a viable “alternative” to jail or high money bail, and for counties that don’t have these supervision and surveillance offices, the frame of “something’s better than nothing” seems to be an unspoken guiding assumption.
But what if what has been perceived as “nothing” is actually better than the imposed “something”? Carceral tools such as electronic monitoring and home detention can have the same detrimental impacts on people’s lives that bail reform was supposed to challenge, not expand.
The reality is, reducing the jail population does not necessarily have to equate to an increase of system supervision. In this moment of transition for Santa Clara County, and so many other counties trying to imagine a new model of pretrial justice – the more liberatory response is condition-free release and the offering of community support, instead of an expansion of conditions and supervision.
People can be released and draw upon their already existing support of family, friends, and community that they may seek to stay on top of court dates (if needed) while integrating more fully back into their daily life. And for those who could use some extra support, community organizations can provide the tangible assists to respond to the causes of people not making it to court. Some community touchstones already do the type of activities that would serve this role – connecting system impacted people with social services, offering transportation, finding housing and employment – it is just offered later in the experience of incarceration in a field called “re-entry services.” In fact, in Santa Clara County, there is a robust and successful “Re-Entry Faith Based Network” which is consistently showing the impact of their supports. If organizations can apply the same type of supports on the pretrial end, the results would be similar.
For the past four years at De-Bug, we have been building this approach in a model we call the Community Release Project. The program is a piece of a larger community driven pretrial justice effort we do in collaboration with public defenders and the Office of Pretrial Services. The approach has three prongs – intervention at arraignment (the first court date), bail hearings, and the Community Release Project which is applied anywhere along the pretrial process.
Community Driven Pretrial Justice
At arraignment court, organizers work with families who show up at court (“families” being broader than blood relatives – could be friends, neighbors, people who love and support the person) to get information to the public defender to best articulate the reasoning for release and reduction of the bail amount. If release isn’t secured, organizers work with the family to collect more information to get to the attorney for the ensuing bail hearing – showing the consequences of detention on the person and family and what supports the family can provide for the person while out. The premise is to give the court a fuller account of who someone is beyond a case file or a depiction by a prosecutor.
For people who don’t have family present at court, or could use extra support regardless, there is the offer of the Community Release Project. These are supports where our organization will offer the person court reminders, transportation to court, or from jail to the place they will stay at, navigation to access social services and re-entry services, and identifying housing options and mental health and substance abuse programs. Through the CRP, we have been able to secure treatment and mental health support housing for people, so when the public defender is making a case for release at a bail hearing – they can already answer the anticipated questions by the court.
People who are released are invited to an optional weekly support meeting as well, so the otherwise isolating, stressful, and often times stigmatizing experience of facing the criminal court process can be understood in a communal environment. It’s also a consistent, rhythmic, way for people to stay on top of their court dates given that everyone is juggling all of the other life responsibilities beyond their case.
And more and more, the courts are starting to include community supports into their release decision analysis.
In 2019, in a comparative study of 100 pre-arraignment cases, 85% of judges imposed the set bail using the standard bail schedule. However, when offered these community supports, reliance on the bail schedule dropped to 48%. The non-monetary release rate increased from 9% to 37% — four times the rate of people being released without having to pay money bail. The impact was also evident at the bail hearing stage, where a review of 25 bail hearings in a three month period lifting up community supports showed 19 cases had the bail amount significantly reduced, or turned into non-monetary release.
But most of the cases, even where the court seemed confident that the person will do well out of custody, the judges still required supervision conditions. That assumption by judges, that SORP is the baseline of release, is how we have ended up with the historically high pretrial supervision numbers.
And despite baseless concerns of people fleeing or committing harm if released, the data evidences, people who are released pretrial show up to court by and large, and offer practically no statistically significant risk to public safety anyhow. In 2021, there was a 95.9% safety rate and a 98% compliance rate of those supervised by the Office of Pretrial Services. And the office reports, “historically, 3 out 4 people successfully attend every single one of their court dates.”
What is lacking is any evidence showing the success rate of people pretrial being attributed to restrictive conditions, rather than the basic supports like reminder calls. In fact, the hardships imposed by tools like electronic monitors can be more of an obstacle to a successful adjudication process.
That is why it is at this particular point in the decarceration timeline that Santa Clara County can pivot to community support instead of electronic monitoring, or GPS, or home detention – and still yield the same successful rates of people returning to court.
With the Community Release Project now, we are also picking people up from jail, sometimes at the request of a judge. They want to make sure the person gets to the County’s Re-Entry Center, or to their housing program, or to their family home – and having a community group meet the person at the jail and take them to their destination often makes the difference for a judge to allow a more immediate release.
Since many people are unhoused and/or without basic resources, we have started giving people phones when we pick them up from jail, so they can call their public defender, or have reminders for court, or can call the Community Release Project for a ride to the next court date. We got the phones because it was such a simple solution to address the reasons why people were missing court dates. They weren’t “fleeing” or purposefully hiding from the court – they often just didn’t know when court was, or missed the bus that day.
And the larger reality is there are community organizations, faith-based institutions, service agencies, that would be anxious to provide these supports – rather than standing on the sidelines. To tap into this natural set of community resources can be the way out of the false dichotomy of incarceration or supervision.