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‘Just Because Somebody Can Make Bail Doesn’t Make Them Safer’

San Diego County courts have been operating without a pretrial services program since October due to lack of funding. The end of San Diego’s program comes amid a national debate on bail reform, spurred by the fact that many pretrial defendants remain locked up not because they pose a public-safety risk, but because they can’t afford bail.

It’s a Thursday afternoon outside Judge David Szumowski’s courtroom on the second floor of San Diego’s Central Courthouse. Felony arraignment begins at 2:15, but well before then, the benches in the hallway are nearly full, many with family and friends of defendants still in custody, unable to post bail. They’re hoping their presence in the courtroom might convince Szumowski to lower bail, maybe even agree to a rare no-bail release.

Over the last two months, Szumowski has been more cautious in making bail decisions. As of Oct. 1, arraignment judges in San Diego County no longer receive risk-assessment reports on each defendant. The reports — which looked at things like a defendant’s criminal history, past failures to appear in court and community ties, like employment — were compiled by the court’s pretrial services program, which ended Sept. 30 due to lack of funding. Judges used the reports to decide whether to raise or lower bail; allow a no-bail release or release a defendant under certain conditions, like attending AA meetings or showing up for drug tests.

“It gave me a better foundation for setting bail at what I thought was reasonable,” said Szumowski, who’s presided over felony arraignment since 1998. Now, he said, he’s “trying to make judgment calls on very limited information.”

The end of San Diego’s program comes amid a national debate on bail reform, spurred by the fact that many pretrial defendants remain locked up not because they pose a public-safety risk, but because they can’t afford bail. Meanwhile, a more dangerous defendant with access to money could get released.

A better system, advocates for pretrial programs say, is using a scientifically based risk-assessment tool that looks at individual risk factors to determine who should remain in jail pending trial.

“Just because somebody can make bail doesn’t make them safer for the community,” said Judge Lisa Rodriguez, who handles arraignments for domestic violence and child-abuse cases in the Central Courthouse.

When San Diego’s pretrial services program started more than three decades ago, it was an arm of the Sheriff’s Department, created to help alleviate jail overcrowding by determining who could safely be released pending trial. At the time, San Diego’s central jail was under a strict population cap. But over the years, the program was whittled down and funding responsibility shifted to the court until 2007, when a new state law banned courts from paying for local programs like pretrial services.

Superior Court CEO Michael Roddy said that since then, he’d been using savings and reserves to cover pretrial services’ roughly $1 million annual budget. Roddy said he told county officials last year that the program was running out of money.

“We spent a year working with the county to have someone pick up that program,” he said. “Finally in August 2015, with no progress in sight on the county front, we needed to move forward on the closure.”

Roddy wonders if Prop. 47, the November 2014 ballot measure that reduced penalties for certain nonviolent drug and property crimes — resulting in an almost immediate reduction in the local jail population — lessened pressure to have a replacement program up and running on Oct. 1. Or, perhaps, no one believed the court was really going to cut the program.

“I’m not sure people thought we were serious,” he said. “Maybe people thought we were bluffing.”

San Diego’s not left with nothing. Since 2013, the Sheriff’s Department has operated the Sheriff’s Transfer Assessment Release program, or STAR, which uses an automated system to flag low-risk defendants when they’re booked into jail. But the program is conservative in whom it releases, said Rodriguez, who worked on the STAR pilot program as a deputy district attorney.

Will Brown, commander of the sheriff’s detention services bureau, said the plan is to expand STAR into a full pretrial services program where judges get risk-assessment reports on each defendant. But he’s not sure when the new program will be up and running or what it will look like. Still undecided, for instance, is whether STAR will operate around the clock, like the county’s pretrial services program did in the early ’80s.

“We’re moving as fast as we can,” Brown said. “We’ve got to go slow enough to make sure we don’t miss anything, but fast enough so that no one’s languishing in jail who poses low to no risk to public safety.”

Roughly 60 percent of people currently held in San Diego jails haven’t been sentenced. While the Sheriff’s Department couldn’t say how many are bail-eligible (someone who’s violated parole would be held without bail, for instance), San Diego County’s — as well as California’s — pretrial detention rate has historically been high.

“We absolutely have a pretrial detention crisis,” said Margaret Dooley-Sammuli, criminal justice and drug policy director for the ACLU of California. “It doesn’t make sense to keep people locked up who don’t need to be locked up.”

Without pretrial services, both Rodriguez and Szumowski said, they’re no longer able to let someone out on supervised release — no bail but with conditions — because it was pretrial services staff who made sure defendants were adhering to those conditions.

For some defendants on supervised release, pretrial services staff became de facto social workers, said Lourdes Zavala Garcia, the program’s former supervisor.

“We were looking at all the services that the person needed,” Zavala Garcia said. “Housing issues, substance abuse, if they needed a job. Some people needed to go back to school; there were 18-, 19-year-olds who didn’t have a high school diploma. … A lot of vets with mental health and substance abuse issues.

“We spent a lot of time working on every single case to make sure they were successful,” she said.

STAR has improved on the court’s former pretrial services program in one way: Pretrial services notified defendants granted a no-bail release of future court dates by telephone. STAR has automated that process, Brown said. A week prior to court, a defendant will receive reminders via email, text and phone.

“This an opportunity to develop pretrial 2.0,” Brown said. “It’s an opportunity to evaluate what pretrial services could look like and do that.”

Randy Mize, chief deputy public defender, said he’d like to see a 24/7 program with an emphasis on getting low-risk defendants out of jail within 24 hours of booking as opposed to the 48 or more hours someone has to wait to be released at arraignment.

“I’m hoping we’ll have a bigger, better pretrial services,” Mize said. “All the sudden, we find ourselves one of the larger counties in the country without pretrial services. That cannot happen.”

Dooley-Sammuli cautioned that there could be some ideological tension in having the agency than runs the county’s jails also running its pretrial services program.

“Programs run by the sheriff are typically described as jail population management,” she said. “On the one hand, it’s Is there a reason to detain this person? On the other hand, it’s We’ve got a full jail, who’s the least risky to release?

According to a recent survey of California counties, only 13 percent have a pretrial services program run by the sheriff’s department. Forty-three percent of programs are run by probation departments while one-third are a collaborative effort between multiple county agencies.

“You don’t benefit politically by releasing anyone,” Dooley-Sammuli said. “How are we going to reduce our pretrial detention rate? It’s going to have to be releasing moderate-risk people to the supervision required. San Diego could become a leader in that and as far as I know, we’re not.”

Correction: An earlier version of this post said that the pretrial services program was initially part of the probation department; it was initially an arm of the Sheriff’s Department.

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