By Jason Pohl
The Sacramento Bee
SACRAMENTO, Calif. — California’s long history of altering its criminal justice system — from requiring life in prison for third-strike offenders to reducing the punishment for hundreds of crimes — is having another moment that could dramatically alter how the state locks people up.
In a seismic, almost overnight shift, California has jailed 21,700 fewer people — nearly one-third of its daily population — in county lockups since the new coronavirus hit the state. Prisons are holding about 5,500 fewer inmates than they did in late March.
The state has reduced bail to $0 for low-level offenses and sheriffs have cleared space in their jails to allow for better physical distancing. At the same time, fewer people are being arrested — jails are seeing less than half the number of weekly bookings than before the pandemic.
The result has been a 32 percent drop in Sacramento County’s jail population. Orange County holds 45 percent fewer people. And some state’s smallest county jails are housing less than half as many people as they did before the pandemic.
For many criminal justice advocates, the pandemic has offered a rare chance to reimagine what public safety really means.
A lower inmate population means counties and the state could end up spending less on housing people and more toward in-custody health services or drug treatment. It could also ease over-crowding pressures in facilities and improve conditions for jail staff who work in them.
“I’m looking forward to seeing sheriffs and other public officials seize the opportunity to really paint on a new canvas. To say, ‘Can we think about things differently?’” said Aaron Fischer, an attorney with Disability Rights California, a nonprofit that in January settled a lawsuit with Sacramento County requiring improved conditions and access to healthcare in the local jails.
Sam Lewis, who has spent decades advocating for fewer people to be locked in California’s cells from the inside and out, said the global health emergency should be a wake-up call that could transform incarceration.
“Now that we have a pandemic and we have to do this, people are starting to say, ‘Well they don’t have to be in the county jail.’ Why weren’t we saying that before this?” said Lewis, who was released in prison in 2012 after serving 24 years and now heads the Anti-Recidivism Coalition.
“We have a system that’s punitive, that wants to put more black and brown people in jail and in cages, not because they need to be there but because we don’t have the courage to be able to say we have other societal issues that we’re refusing to address.”
California has struggled with its jail and prison population for decades, veering between conservative anti-crime measures to more lenient and progressive initiatives.
Against the backdrop of the country’s tough-on-crime push in the 1980s, California voters approved the so-called Three Strikes Law in 1994. The law required longer prison sentences for certain repeat offenders and grew the state’s prison population for decades.
After a push to build more prisons and a wave of lawsuits over unconstitutional conditions, lawmakers at the direction of then-Gov. Jerry Brown in 2011 passed a series of reforms that shifted some offenders to county jails. They called the package realignment.
That, in turn, swelled populations in county jails. Proposition 47, a 2014 ballot measure that downgraded an array of drug and property crimes to misdemeanors, released much of the growing pressure and brought the daily statewide jail population to about 73,000. It has held steady about that point ever since — until March.
Those changes unfolded over months and even years. The pandemic depopulation took just weeks.
And the year isn’t over. An initiative to eliminate cash bail is set for the ballot in November. Newsom has announced a goal of closing a state prison or even two while in office. Jails have been sued for failing to properly care for people in their custody.
Not everyone is convinced that progressive justice system changes will continue.
Efforts underway before COVID-19 — and those caused by it — will have to compete for attention in a society that now has a host of other economic problems to solve, said Sandra Smith, sociology department chair at UC Berkeley. People who commit crimes will be “viewed as the last set of folks whose issues should be addressed,” she said.
And that, in turn, could result in jails and prisons snapping back to “business as usual.”
“I think that this pandemic has effectively not just laid bare what the nature of inequality is in this country,” Smith said. “It has deepened it.”
Jails empty fast, prisons move slow
Longer-term overhauls must wait until the current crisis is brought under control, experts agree.
That’s especially true in the state’s prisons, where population changes have come slower than in the jails. A system-wide testing plan is ramping up in California’s prisons, where roughly 1,000 people, among the state’s 112,000 inmates, have tested positive for COVID-19. At least nine have died.
The state has released about 3,500 people who were near the end of their sentence to ease some crowding, and the population is down about 5,500 compared to mid-March.
“That clearly tells me that we can do more,” Lewis said.
Part of the reason for the decrease has been because the state closed the front door and stopped accepting transfers from county jails, a practice it is poised to resume this week.
The result, inmate attorneys argue, is that “the rise in population and increase in movement will significantly and unacceptably elevate the risk of transmission of COVID-19. The rise in population will mean more overcrowding and consequent difficulties with packed dorms and overflowing common areas.”
That concern is the latest in a line of criticism that the state has not done enough to reduce the prison population. In his daily briefings since March, Newsom has announced major changes and policy shifts to help otherwise vulnerable people, including for seniors, children and people experiencing homelessness.
Actions affecting prisons and jails have been noticeably absent.
“What happens if we wake up tomorrow and 70 people die over night in our institutions? Who’s responsible for that?” Lewis said. “I admire and respect this governor… But I just feel like he can do more.”
State prisons across the country have been slow to release inmates, even as they experience the most significant COVID-19 outbreaks in the country. But California’s lack of swifter state action has been surprising, said Wanda Bertram, spokeswoman for the Prison Policy Initiative, a national criminal justice think tank.
“We expected that the progressive governors were going to do more,” Bertram said. “Newsom is definitely on that list, so I think we were as surprised as a lot of folks in California have been to see the slow and small number of releases taking place.”
What it means for future of populations and who’s in jail
Where state prisons have been slow to ease populations, jails have seen the opposite occur.
County jail populations for years have hovered around 70,000. Those averages plummeted in March, and facilities now hold about 50,000 people, according to survey data compiled by the Board of State and Community Corrections.
Thirty-one of California’s 56 county jail systems have seen their inmate populations plummet by at least a third. Jails before the pandemic booked about 17,000 people per week. That number plunged to about 6,000 in March and has increased slightly this month.
“We’re basically testing out drastic pretrial reform right now,” Bertram said.
Some facilities were overcrowded. Many, including Sacramento County, have been sued in federal court and agreed in settlements to improve conditions and access to health care.
The emptying of the local jail should be seen as an opportunity, said Margot Mendelson, an attorney with the Prison Law Office and co-counsel on the Sacramento County settlement.
“In Sacramento, we think this is a really important moment for the sheriff’s department to examine how it wants to use its resources,” Mendelson said. “The costs of providing a humane environment with constitutionally adequate care are dramatically lower with a lower population.
“This is an important moment to recognize that.”
As communities wait to see what happens, meaningful research about the effects of jail and prison reforms will be months or years away — assuming it’s possible to produce at all.
It has historically been relatively easy to determine how reforms handed down in Sacramento or by the voters have influenced crime rates. Recent work found only a slight uptick in thefts from vehicles after Proposition 47 reclassified some crimes to misdemeanors, said Brandon Martin, a researcher with the Public Policy Institute of California who has studied crime trends after justice system changes.
But that work has been thrown into chaos during a pandemic that decimated the economy and disrupted essentially every facet of daily life. It becomes difficult to know, for example whether an increase in crime rates is caused by decreased jail population or if it’s instead linked to the deep financial crisis that has left millions out of work.
“As we exit this shelter-in-place, it sort of just depends on how society gets back to normal,” Martin said. “From a researcher’s perspective, it’ll be pretty hard to tie the drop in the population to specific things just because you’re going to have such a different world.”
Bail reform already under fire
Sacramento County Sheriff Scott Jones said decreased jail populations were “a noble and worthwhile goal.”
But in a statement to The Bee he criticized the steps that were taken to get to the current level, particularly the Judicial Council’s $0 bail order for most misdemeanor and lower-level felonies.
Bail remains for people held for violent crimes, including those suspected of sex or gun crimes; those facing domestic violence charges or people under court-order restraining orders. But Jones said not all sides were considered when the change was put in place, and the conversation about how to depopulate the jails was not had “in any meaningful way.”
The releases, Jones said, disregarded risk factors and “were consummated to further an agenda of simply reducing the incarcerated population at ANY cost.”
Voters will decide in November whether to eliminate cash bail altogether.
The big unknown, experts say, is whether the current bail order will influence how people think about a longer term change.
“Whether that is perceived by the public as a success, as something that means we can institute it on a permanent basis, or whether it is spun by law and order forces as a drastic mistake because one person commits another crime while they’re out on $0 bail, that’s going to control what happens next,” Bertram said.
Some of the changes might also be out of financial necessity.
Hard economic times are often reflected in county services. That includes county sheriffs responsible for running the jail — typically the largest part of their annual budgets. Departments in the past have laid off staff and shuttered floors, but it’s too soon to know what cuts might look like across California and around the country.
“On a national level right now, we’re really getting an opportunity to see how necessary our system of mass incarceration on a local as well as a state level really is, Bertram said. “A lot of what happens next is going to have to deal with public opinion.”
The county jail population in Santa Barbara County has dropped 40 percent since the pandemic began. Raquel Zick, a sheriff’s office spokeswoman, said officials were using the reduced demands inside the jail to plan new programs and lock in partnerships that could help people being released from custody, “regardless if the number is more or less than it was before the coronavirus pandemic.”
“Although a reduction in daily population is a welcome respite, we are not proceeding with the assumption that it will be long lasting,” Zick said. “Many of the temporary measures taken to provide our facility with the room needed to effect social distancing will eventually be lifted.”
Jones in his statement downplayed the opportunity to use the current moment to change the way the jail operates in response to the lawsuit settlement that was finalized in January. Among the orders: the county would decrease its jail population and change its staffing plan to allow for more timely access to mental health screenings and treatment.
“We undergo several audits and inspections each year from several state and federal agencies, and have always provided an excellent level of custody and care. Being a very large county with an expansive jail system, there will be individual instances where perhaps we fall short, but those instances are the exception rather than the rule,” Jones said.
“In those cases, we attempt to remedy the situation, learn from them, and use the incident to try and prevent future recurrences and provide better service going forward.”
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©2020 The Sacramento Bee (Sacramento, Calif.)