Innocent Until Proven Guilty?

R1

The San Mateo County Board of Supervisors should direct the Probation Department Pretrial Services to evaluate and recommend various alternatives to pretrial incarceration, including but not limited to evidence-based risk-assessment tools and electronic monitoring. • The Probation Department should present its evaluation and recommendations to the Board of Supervisors by June 30, 2017. • As part of the evaluation and recommendation process, the Probation Department should receive input from members of the San Mateo County Community Corrections Partnership (CCP), as well as from criminal trial judges.

R2

The Controller’s Office should provide an annual analysis beginning in FY 2016-2017 of the total costs to run the County’s jails including estimates of how costs will vary with changes in the jail population. The first annual report should be completed and presented at a public meeting to the Board of Supervisors by September 1, 2017. Ibid.

R3

Observing constitutional rights to reasonable bail and due process that apply to those arrested but not yet convicted, and

R4

Controlling jail costs, which is the largest expense in many county budgets Impact of Detention on Unsentenced Defendants Pretrial, or unsentenced, defendants6 are people who have been accused of a crime and remain in jail prior to their trial “either because of a failure to post bail or due to denial of release under a pretrial detention statute.”7 4 Sonya Tafoya, "Assessing the Impact of Bail on California’s Jail Population" (San Francisco, CA: Public Policy Institute of California, June 2013). http://www.ppic.org/content/pubs/report/R_613STR.pdf 5 Marc Levin, "Pre-Trial Justice 101: Key Points for Policymakers" (Texas Public Policy Foundation, 2016). http://rightoncrime.com/2015/03/levin-new-report-on-pretrial-justice/ 6 In this report the term unsentenced rather than pretrial is used because the County and the State use it in their jail statistics. The two terms are not completely identical. The term unsentenced includes individuals who have been convicted at trial and are awaiting sentencing as well as those awaiting trial. The term pretrial excludes those awaiting sentencing. USLegal, "Pre Trial Detention Law & Legal Definition," USLegal, Inc. http://definitions.uslegal.com/p/pre-trial- detention/ Unsentenced defendants may suffer in many ways.8 They may lose income; many lose jobs and/or housing; and, their families are impacted financially and socially.9 Unsentenced defendants in jail are more likely to take plea deals than those who have been released on their own recognizance or made bail.10 Finally, studies show that people who are in jail before their trial and who go to trial are more likely to be convicted and receive longer sentences.11 The concern about the disproportionate impact of bail on the poor is not a new one. In 1964 at the first National Symposium on Pretrial Justice, Attorney General Robert Kennedy said: Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But, nonetheless, most of them must stay in jail because, to be blunt, they cannot afford to pay for their freedom . . . [the] problem, simply stated is: the rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail.12 Impact of Bailed Defendants on Community Safety The California Penal Code requires that “the public safety shall be the primary consideration,”13 in setting bail. In California, within a two-year period, suspects who had been released on bail committed more than 20,000 crimes, including robberies, murders, and rapes.14 “The most common crimes that were committed were criminal damages and assault on police officers. That number of crimes equates to well over 30 individual offenses each day. . . . One quarter of all crimes that were committed in 2007 were committed by individuals who were out on bail.”15 Cost of Incarcerating Unsentenced Defendants Taxpayers are also burdened. The U.S. Bureau of Justice Statistics estimated that at mid-year 2014, there were 745,000 inmates in county and local jails across the United States. Sixty-two percent of them were unconvicted.16 The Bureau notes, “Since 2000, 95% of the growth in the 8 Nick Pinto, "The Bail Trap," New York Times Magazine, August 13, 2015. http://nyti.ms/1IJKXjS 9 Shima Baradaran Baughman, "Costs of Pretrial Detention," Boston University Law Review (2017, Forthcoming). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757251 10 Mary E. Buser, "How Rikers Drove My Innocent Patient to Plead Guilty," Politico Magazine, October 6, 2015. http://www.politico.com/magazine/story/2015/10/rikers-island-plea-bargains-213223 11 Timothy R. Schnacke, "Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform" (2014). http://nicic.gov/Library/files/028360.pdf 12 Robert F. Kennedy, "Testimony by Attorney General Robert F. Kennedy on Bail Legislation," Subcommittee on Constitutional Rights and Improvements in Judicial Machinery of the Senate Judiciary Committee, U.S. Senate (Washington DC: Department of Justice Library, August 4, 1964). https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/08-04-1964.pdf 13 California Penal Code §1270, cl. (a) 14 Remedy Bail Bonds, 2012. http://remedybail.com/blog/crimes-committed-while-on-bail. http://remedybail.com/blog/crimes-committed-while-on-bail 15 Ibid. Todd D. Minton and Zhen Zeng, "Jail Inmates at Midyear 2014" (Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, June 2015). http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5299 overall jail inmate population (123,500) was due to the increase in the unconvicted population (117,700 inmates).”17 The cost to the country of detaining unconvicted individuals in county jails exceeds $9 billion annually.18 In FY 2014-2015, San Mateo County spent $64.6 million to run the Men’s and Women’s Jails. This came to approximately $75,000 per year per inmate (see