Tuesday, May 15, 2018 · by Tamara Aparton
By Evan Sernoffsky
David, a 76-year-old Vietnam veteran, found himself in San Francisco County Jail in mid-January after a fight with his abusive partner. He had no idea how to get a lawyer, how to get his HIV medication or when he’d even get out.
“I had never been to jail and the experience is not too pleasant,” said David, who asked that his last name be withheld due to privacy concerns. “I think I was the oldest one in there, and orange is not my color.”
But thanks to the Pretrial Release Unit, an eight-month-old program through the San Francisco Public Defender’s Office, David was in contact with an attorney, received his meds and already had an investigator working his case within hours of being booked.
As his defense attorney looked into his case, the facts of what really happened between David and his former partner became apparent — and in a twist, prosecutors dropped all the charges and later filed embezzlement and elder abuse charges against the other man.
The Public Defender’s Office is now asking the Board of Supervisors for $440,500 to fund its Pretrial Release Unit for the next fiscal year, and officials are pointing to the program’s results beyond cases like David’s as the city struggles to reduce its jail population.
From the time the unit began seeing defendants on Oct. 2, 2017 and the end of February, the program saved approximately 4,689 jail bed days — an average of 940 jail bed days a month, which would translate to 11,253 a year, according to a new study of the unit by UC Berkeley’s Goldman School of Public Policy.
Researchers found that defendants visited by one of the unit’s two attorneys and investigator were released at arraignment 28 percent of the time before trial on average. People who didn’t have representation got released just 14 percent of the time, according to the study.
The unit also created greater equity in the justice system and helped some defendants keep their jobs and maintain stable housing by getting released sooner, researchers said.
“I feel that the fact that we’re now providing public defenders in the jails when a person is booked is probably the single most innovative and important thing we’ve been able to do since I’ve been here,” Public Defender Jeff Adachi said. “To be able to meet and represent our clients and start investigating their cases is the way our system should work.”
The program, though, has drawn scrutiny from some domestic violence and victims rights advocates, who are concerned about the unit’s investigators contacting victims.
“They do attempt to contact victims,” said Beverly Upton, executive director of San Francisco Domestic Violence Consortium. “It’s always concerning, but I think over time the best thing we’ve come up with as a community is to make sure victims have their own advocates.”
Upton acknowledged that some cases can be complicated, and a situation like David’s underscores how victims can be arrested before police know what really happened.
Adachi defendend his unit’s investigations, saying that contacting a complaining witness is important in any case in order to untangle what happened. “The presumption of innocence doesn’t go away simply because it’s a case of a more sensitive nature,” he said.
The new research on the Pretrial Release Unit comes as San Francisco works to reduce the number of occupied jail bed days by more than 83,000 a year. The Board of Supervisors in 2015 rejected a proposal to build a new jail and replace the seismically-unsound facilities at the Hall of Justice.
The Public Defender’s program is one of several new approaches and policies causing sweeping changes across San Francisco’s criminal justice system and increasing the number of people being released from jail pretrial.
In the first three months of 2018, the San Francisco Sheriff’s Department released 791 inmates facing felony charges before their trials — a 56 percent increase over the same period from the prior year, according to jail statistics.
Many of those defendants were released as a result of a landmark January appeals court ruling in the case of Kenneth Humphrey, which forced judges to consider a defendant’s ability to pay bail when setting the amount. The decision prompted the release of hundreds of defendants on jail alternatives like ankle monitoring.
The UC Berkeley study only looked at cases through the end of February, so it didn’t capture the full impact of the Humphrey decision on the Pretrial Release Unit. It remains unclear how many jailed defendants contacted by the public defender are now eligible for release under the new bail laws.
And while the public defender’s new intitiative has had a measurable impact on the jail population, a more significant factor in reducing jail bed days has been the city’s Pretrial Diversion Project — similar in name to the Public Defender’s unit but vastly different in function.
The city-funded nonprofit, which has contracted with the Sheriff’s Department for 42 years, assesses whether defendants pose a public safety risk upon booking and determines if they should be cut loose before arraignment.
For the past two years, the program has used a public safety assessment tool developed by the Laura and John Arnold Foundation, and case managers submit the results of an algorithm to a judge, who then decides whether to release a defendant regardless of whether they’ve seen an attorney.
Eligible defendants are released from jail 61 percent of the time before arraignment, according to the Pretrial Diversion Project. Before the Arnold tool was used, defendants were released pre-arraignment just 24 percent of the time, according to Nancy Rubin, the program’s top official.
The Pretrial Diversion Project is responsible for saving around 30,000 jail bed days per month, Rubin said, which is more than three times the number claimed by the Public Defender’s Office.
The program must also supervise defendants once they go free, leaving workers inundated with new cases as releases increase. Rubin said she’s asking the city for $1.78 million in new funding for the next fiscal year to hire 15 new employees to handle the extra caseloads.
Right now, the unit out of the Public Defender’s Office visits about 25 percent of everyone booked in the jail, according to the city Controller’s Office, and Adachi wants to eventually expand the program.
Despite the notable increases in people released from jail before trial via the Pretrial Release Unit, the Pretrial Diversion Project and the Humphrey decision, the average daily jail population hasn’t changed much.
Jail bookings actually increased by 5 percent — from 4,061 to 3,886 — in the first quarter of 2018 compared to the same period last year, records show. Overall, the average daily jail population during that same period dropped only 3 percent.