Monday, November 26, 2012 · by Tamara Aparton
By Albert Samaha
He lost his apartment and his car. Most of his possessions were in a dump somewhere. His debt was in the thousands. The brother he provided for was sent into transitional housing.
Anthony Dorton was finally out of jail. But his path to freedom had come with a cost.
He would re-enter society on an August night, relieved that the San Francisco jury believed his side of the story. He couldn’t erase the anger, though, hardened and entrenched by 10 months locked up for a crime he didn’t commit and hadn’t been convicted of.
A sheriff’s deputy swung open the bulky steel door.
“Ten months and just like that, huh?” Dorton muttered.
The deputy patted his back and said, “You should just be happy you’re free.”
Dorton clenched his jaw. The deputy walked him into a small room to change clothes. Dorton traded his inmate orange for the white T-shirt and blue jeans that had been waiting for him. They still fit, even though the jailhouse workouts had given him some added bulk. “If I gotta be in jail,” he’d told himself during his stay, “I might as well look like it.”
Soon he was outside in the chilly darkness. He carried a plastic bag heavy with belongings accumulated in his cell: books, magazines, and papers filled with notes on the auto mechanic business he planned to start once he got out. He looked skyward and took a deep breath. He’d forgotten what fresh air smelled like.
The legal system had worked out the way it was designed to. A woman accused Dorton of assaulting and pimping her. The prosecution’s case fell apart when jurors learned that the woman had no marks on her face a few hours after the assault supposedly occurred, and that she had continued working as a self-employed prostitute in the months leading up to the trial. The jury acquitted Dorton on the assault allegation and hung on the pimping count. The district attorney chose not to re-try.
Now Dorton was as free as the day before he first stepped into the stark, gray Hall of Justice. Most everything else in his reality, however, had drastically changed.
Judge Gerardo Sandoval had set his bail at $300,000, which meant Dorton’s freedom hinged on paying a bondsman a $30,000 non-refundable fee. The 23-year-old, who had recently been laid off from his job installing cable for Comcast, didn’t have it.
So he lingered behind bars, awaiting the chance to prove his innocence, as the court process lumbered forward. Jail meant no job applications or picking up unemployment checks, no making rent or car payments, and, by extension, eviction and repossession. By the time justice was served, Dorton’s life was in ruins.
It’s the filthy secret of the American judicial system: A majority of county jail inmates have not been convicted of any crime. They sleep and eat among the proven criminals, and are treated as such, packed in crowded barracks and transported in chains, because they did not have enough money. More than 60 percent of America’s jail population has not been convicted, more than 70 percent in California. In San Francisco, 83 percent of county jail inmates have not stood trial. (The DA’s office doesn’t keep stats on what percentage of those charged end up convicted.)
“There are many people that, keeping them in custody doesn’t improve our public safety,” says District Attorney George Gascón. “Many of those people are only in there because they could not afford to pay bail.”
Those inmates are casualties of a bail system in which freedom is determined not just by a person’s perceived risk to society but by the wealth to their name. It is an institutional flaw that has existed in America since the colonists brought over the concept of bail from England, where it had been law for centuries. The Founding Fathers wrote in the Eighth Amendment that “excessive bail shall not be required,” but for decades public officials and reform advocates have stretched and twisted the exact meaning of “excessive.”
“We see lives destroyed on a regular basis,” says Carmen Aguirre, an attorney at the Public Defender’s Office.
People who live paycheck to paycheck lose their paycheck and all that comes with it. Some lose their homes. Others lose custody of their children. Many see their family struggle to make ends meet. Banished to constitutional limbo, they see the world proceeding as their lives remain locked down and frozen.
“It’s a trap,” says Dorton. “It’s wrong. It’s cruel. It’s just hella fucked up.”
The basic purpose of bail is to ensure that a person shows up to court. But in order to achieve this, the system must address two conflicting goals: to support the maxim that a person is innocent until proven guilty and to keep off the streets those defendants perceived by law enforcement to be dangerous. Debates over American bail policy have been debates over shifting the weight of this complicated see-saw, from protecting the public to protecting the rights of the accused.
The birth of the modern bail reform movement came in 1927, when sociologist Arthur Lawton Beeley published a study on pretrial detention in Chicago. He concluded that the monetary bail practice had produced a system where freedom was primarily based on wealth. Academic studies over the next few decades furthered Beeley’s findings, and by the 1960s reforms emerged.
“The rich man and the poor man do not receive equal justice in our courts,” U.S. Attorney General Robert Kennedy told the Congressional Subcommittee on Constitutional Rights and Improvements in Judicial Machinery in 1964. “And in no area is this more evident than in the matter of bail.”
In 1961, the Manhattan Bail Project sought to quantitatively measure a defendant’s flight risk in an effort to increase the rate of releases on the defendant’s own recognizance (OR), where the accused just has to promise to show up for his court date. Following this trend, the Bail Reform Act of 1966 declared that defendants in non-capital crimes (all but the most heinous murders) had a right to be released on OR. If a judge determined that additional conditions were necessary to ensure the person’s court appearance, then the judge had to select the least restrictive conditions possible, such as travel limitations, home detention, or monetary bond. Pretrial incarceration would be the last resort, used after a judge deemed all other alternatives insufficient. The legislation ruled that a judge’s only pretrial goal was securing a defendant’s appearance in court.
Rising crime rates through the 1970s and ’80s, however, shifted this paradigm, as law enforcement officials argued that judges must also consider the potential danger a defendant poses to society. States, including California, amended their laws so that public safety would also be a primary factor in pretrial decisions. Congress followed suit with the Bail Reform Act of 1984, rolling back previous reforms.
As criminologist John Goldkamp wrote in the Journal of Criminal Law and Criminology in 1985, “The social and historical shift in the recent decades, away from poverty and civil liberty concerns and toward a climate marked more by heightened public fear of crime and ‘law and order’ politics may explain the evolution of the danger-oriented agenda of bail and pretrial detention practices.”
Within three days of a person’s booking into county jail, he stands before a judge for an arraignment hearing, where the judge releases him on his own recognizance, sets a bail amount, or denies him bail eligibility. To make this decision, the judge reviews the person’s criminal history, any past cases of skipping court dates, and the police report of the current crime.
The bail amount is often based on the charge. Judges usually refer to the county’s bail schedule, which suggests figures for different crimes. Those like Dorton who have been charged with multiple counts receive particularly high bail because of “bail stacking,” the judicial practice of combining the bail amounts for each of the charges. Those without the cash or property to put up as collateral must go to a commercial bail bondsman, who will post the bail for, generally, a 10 percent fee.
Many don’t have enough money for that. In San Francisco, judges have the option to order probation-style supervised release for those defendants, through the nonprofit San Francisco Pretrial Diversion Project. This alternative is limited. Because the organization operates independently, without a law enforcement arm, it does not have “the teeth,” says the program’s Chief Operating Officer Allison McCovey, to risk supervising those accused of violent or sex crimes. From January through September 2012, judges have referred 286 defendants to SFPDP. Program workers interviewed them for around half an hour, then send the judge a report detailing the person’s community ties. The report is purely informational and does not make any recommendation. Of those 286 cases, judges approved supervised release for 33.
Anthony Dorton had never been in jail before. The cramped dormitories, the regimented days, the inevitable conflicts with other inmates, the absence of privacy and quality food — it all hit him like a first round uppercut. On day one, he figured he’d be free soon. “They’ve got nothing on me but this bogus-ass story,” he kept telling himself, as he replayed the previous two weeks in his mind.
Twelve days before, he met the woman who would accuse him of assault and pimping. His girlfriend introduced them. The woman (the DA’s office requested that her name not be disclosed due to the nature of the accusation) said she had recently become homeless. Dorton told her she could crash at his apartment for a couple nights, while she sorted things out. But a few days turned into over a week, which was longer than Dorton anticipated. He dropped hints — “So what’s your plans?” And she’d tell him she was just waiting for a call back from her sister or a friend. On the 11th day, Dorton told the woman that she had to leave. He dropped her off in the Mission.
Around 3 a.m., the woman called him, he says. She was crying, saying something about a guy she had gotten into an altercation with. Dorton had an idea how she made her money, but didn’t want to pry. The woman asked him to pick her up. He refused and hung up. She kept calling. He picked up on the fourth or fifth try. She was pissed, he recalls, screaming at him and threatening to call the police if he did not come get her.
“The police?” he said, bewildered. “Bitch, call ’em. What the fuck you gon’ tell the police?”
“Imma tell ’em you beat my ass!”
Not wanting to deal with the hassle, Dorton went and picked her up. She exploded on him as soon as she got into his car, he says, furiously cursing at him for nearly leaving her stranded.
“Fuck this,” Dorton seethed. He stopped the car and ordered her out.
“Fuck you!” the woman shouted.
She looked into the back seat, grabbed a fork from the floor, and began stabbing the seat cushions, he says. Dorton, panicking, jumped out of the car, ran around the front, opened the passenger side door, and grabbed the woman’s arm, pulling her onto the sidewalk. She screamed incoherently as he raced back to the driver’s seat and gassed it.
The next day, the woman called Dorton and apologized. She said she’d give him some money — to fix his car or for his hospitality, he assumed. He didn’t know that the woman made the call from the police station, and that he was being set up for an arrest.
The police report stated that the accuser had entered the police station that morning “hysterical, distraught, and had visible cuts on her legs.” It claimed that Dorton “dragged [the accuser] out of the vehicle by her hair and started punching and kicking [her] in the head and stating that he was ‘not going to leave any marks’ so [she] could not prove anything.” There were no witnesses. He went to jail.
Dorton soon learned the nuances of the American justice system. The string of hearings: arraignments, status checks, motions, pretrial testimonies. For a felony case, the court process takes at least three months before the trial begins. Dorton wanted to get to trial as soon as possible, but his public defender, Qiana Washington, suggested he waive his right to a speedy trial. He was facing 12 years, she stressed, and it was important that they take the time to build a solid case, taking nothing for granted. Building a defense can take months, particularly for those represented by a public defender. Washington had to balance Dorton’s case with the two dozen others on her desk.
The weeks slogged on. “If they could keep me in here this long for nothing,” Dorton wondered, “Why couldn’t they keep me in here for 12 years?” He pushed the thought out of his mind, occupying himself with reading, writing, and push-ups. But at night, when he closed his eyes, those 12 years hammered at his mind.
He’d think about his childhood, growing up with his grandmother in the Sunnydale housing projects — mom on drugs, dad not ready to be a father. Dorton’s half-brother lived in foster care. A teenage Dorton told his brother, who was five years younger, that he’d pull him out and get them their own place one day.
While some of his friends turned to drug-dealing, Dorton knew he’d need a clean record to get a real job. So he hustled his own way. He bought candies wholesale and sold them to classmates. He hawked bootleg DVDs, repaired cars and TVs.
His grandma died when he was 17, leaving him homeless. Fresh out of high school, he took on two jobs. In the mornings, he says he’d install cable for AT&T, then take a quick nap in the car before clocking in as the night watchman for a security company. Then he’d take another nap before starting the cycle again. After two years, he’d saved up enough for an apartment and an ’80s model BMW.
On some of those nights in jail, the shouts of guards would jolt Dorton awake. A couple of inmates in the 45-person dormitory had been caught talking after lights out. The guards would rush in and corral the whole group into a small room, with no beds or chairs, just bright lights. The prisoners would sit there, drowsy and shell-shocked on the cold concrete, for what felt like hours.
Jail can be too much for some people, and that’s an advantage for prosecutors, who leverage it for a plea bargain.
It was too much for Clyde Frazier. The way he tells it, one night he saw a drunk couple stumbling out of a bar. The woman was having trouble leading the man into a cab. So Frazier helped guide the man across the sidewalk. The man did not take kindly to this and, according to Frazier, punched him in the face. Frazier swung back, sending the man tumbling, his head smacking the taxi. The man ended his night in the hospital and Frazier was charged with assault.
Witnesses to the incident had only seen the second punch — Frazier’s. He wanted to go to trial, confident the jury would believe his side. After 104 days in jail and still no trial date, he didn’t feel that way anymore. He’d had enough. Prosecutors offered him a deal: misdemeanor assault and time served. He could walk out of jail that day if he pleaded guilty. So he did.
Dorton didn’t even consider it. The DA’s offer required him to register as a sex offender because of the pimping charge. No way, he said. The decision paid off. The accuser proved to be unreliable, her stories shifting and her testimony self-damning. It didn’t help that her Facebook page listed her employment as “PIMPIN SINCE PIMPIN BEEN PIMPIN … HEAD PIMPTRESS IN CHARGE” and her education as “Advanced Pimpin … keepin hoes in LINE!!!” Worse, the defense team revealed that the accuser had continued working as a prostitute through myredbook.com even as the city paid for her hotel accommodations during the court proceedings. Media outlets noted that the DA’s office spent over $2,000 of taxpayer money on her.
Dorton’s 10 months in jail cost the city $30,000.
Angel Garcia was locked in jail for six months before the jury acquitted him. His wife had told her psychiatrist that she may have seen Garcia inappropriately touching their 8-year-old niece. The psychiatrist called the police. Garcia claimed that his niece and son had been fighting over a video game, and he was pulling her away from him. There were no other witnesses. Even though Garcia had no criminal history, Judge Susan Breall set bail at $450,000. (Several San Francisco judges did not reply to interview requests for this story.)
His family visited the first few weeks in jail. It would always end in tears — his sister’s, his wife’s, his 6-year-old son’s, his infant son’s. So he asked them to stop coming.
Garcia, 32, had been the breadwinner, holding down two jobs — custodial work at a movie theatre and manual labor at a farmers market. With him gone, Garcia’s wife moved into her brother’s house. She and her sons slept on the couch. The boys, missing their dad, lost their appetite and became anemic. The 6-year-old began struggling in school.
Once free, Garcia got his job at the farmers market back, but he had to start at the lowest pay grade, which was $5 an hour less than what he was making before. The family moved into a small apartment, which they share with two other people. Five months after the May verdict, the 6-year-old still asks his dad, “When are you gonna leave again?”
“It feels like I’m starting my life all over again,” Garcia says. “Starting from zero. Everything’s different.”
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.
“It sucks that they could take 10 months of my life and just say, ‘Okay, bye, you’re free,'” he says. “A lot of the things I lost when I was in jail, I worked my whole life to get. I worked my way up from the bottom and it’s crazy that what this one person says can tear that all down.”
He checks his watch. He got his security job back and has to start soon. He stands up, zips his jacket, and grabs his helmet. A minute later he is on the bike, revving the engine. He zooms off, accelerating down the empty road, with the speed of a man trying to catch up to something.