By Callie Shanafelt
District Attorney Michael Ramos worries that crime will increase in San Bernardino County as a result of AB 109, the new law requiring counties to manage non-serious, non-sexual, non-violent offenders in their jails, probation departments and courts.
“When we sentence people like that,” Ramos said, “they go into the front door of the jail – somebody’s got to come out the back door.”
San Bernardino County doesn’t have space for all the low-level offenders they need to incarcerate in their jails after October 1.
The effects of the law will remain unclear until after – perhaps months after –prison reform starts in a few weeks. For now, the only thing district attorneys around the state can be sure of is that their caseload will increase with low-level parole violators.
Instead of being processed through the state parole board, people who violate probation will now be handled in county courts.
AB 109 also reduces the maximum sentence for a parole violation from one year to six months with one day’s credit for each day served, which could mean parole violations only lead to a 90-day sentence.
This change could mean they choose to charge people with a new offense, instead of the parole violation, said Karen Meredith, Assistant District Attorney in Alameda County. Whatever DAs decide to do, they will have more people supervised under probation and “across the board this may increase new violations,” Meredith said.
DA offices and county court systems still need to clarify the issues that are up to their discretion and understand the parameters of the new law.
At a recent meeting where district attorneys tried to understand how AB 109 will affect them, Santa Clara University Assistant Law Professor David Ball realized one thing—that no one fully understands the implications of the complicated bill.
“I left that meeting pretty concerned that the law really needs to be either simpler or clearer or there needs to be more time for people to study it or understand it,” Ball said.
There are a lot of conditions within the legislation, such as a list of 60 low-level crimes that will still require incarceration in state prison. Sometimes the distinctions between non-serious and serious crimes seem arbitrary.
“You can sell three pounds of cocaine and be sent to county jail but you sell horse meat and you are sent to state prison,” Alameda County DA Meredith said.
The bill creates new possibilities for judges to use their discretion in creative and alternative sentencing. Meredith said the intent of the legislation is to try to reduce recidivism by investing in communities. “Our office is going to embrace that,” she said.
While DA Ramos supports the intent of the legislation, he has his doubts that it will work. “I hope I’m wrong, but even if we do the best in the world on rehabilitation, it’s not going to happen for months,” Ramos said.
“What concerns us most is the financial picture,” Ramos said. “Nobody says it’s ongoing. We hope the state doesn’t dump this on us then leave us.”
The current allocation of funds is a controversial aspect of the legislation. The current funding formula, developed by the State Department of Finance and agreed to by County Administrative Officers (CAO) and California State Association of Counties (CSAC) is weighted so that counties that have been sending more low-level offenders to state prison get a larger percentage of the $354 million allocated to realignment in the first year.
San Bernardino County was classified as a “high-use” county in Ball’s recent study, while Alameda County was classified as “low-use.” The two counties are nearly identical when comparing population size and crime rates. Yet, using the current formula, San Bernardino will get $25.8 million in additional funds from the state the first year, while Alameda gets $9.2 million.
Alameda County has been able to keep people out of state prisons in the past by using alternative sentencing involving probation and drug and alcohol rehabilitation programs, Meredith said.
Advocates for Alameda and other “low-use” counties want an allocation of funds based on population and crime rates instead of past state prison use.
District Attorney Ramos points out that each county has different politics. “In San Bernardino we’re a very conservative county,” Ramos said. “We are tough on crime and lead the state in state prison commitments per capita.”
Some experts don’t think a tough-on-crime stance makes for the best policy. “Prison is one policy choice among many for how to deal with crime problems,” Ball said, “It’s expensive and less effective.”
But DA Ramos thinks that putting perpetrators in prison helps crime victims heal.
“I see the faces of people who’ve been victimized and I’ve got to be their voice,” Ramos said. “If I’m going to be judged for being tough on crime, then so be it.”
San Bernardino County is considering using electronic monitoring and in-home detention to reduce the number of people in county jails. Ramos also wants to use flash incarceration, putting parole and probation violators in jail for a few days at a time.
Two-thirds of the people in county jails today are people waiting to be sentenced. One way to reduce the number of people in jail, Ball suggests, would be to release more of those people on their own recognizance based on a better risk-assessment tool.
But DA Ramos isn’t likely to take Ball’s advice. “I have concerns about that,” Ramos said. “When somebody commits a crime and sits in jail, they are more likely to plead guilty.”
Alameda County is considering many possibilities for adjusting to realignment, Meredith said. She doesn’t think it is likely they would release more people on their own recognizance. Instead, they are exploring new risk assessment tools, electronic monitoring and releasing people on work furloughs.
“In any of these uses of these instruments we have to be protective of public safety and victim rights,” Meredith said.
DA Ramos remains afraid that crime in San Bernardino County will increase with these reforms.
“When you have people that should have been in prison that are now out on the streets and they don’t have jobs and they’re hooked on drugs and they are going to commit crimes.” Ramos said. “No doubt.”
But according to Ball, studies show incarcerating low-level offenders in state prisons or high-intensity programming can turn them into more serious public safety risks.
“If you send somebody who is low-risk into a high-risk environment more is not better,” Ball said. “More can be much worse.”
Realignment is a step in the right direction, Ball said. “Ideally, counties are going to be resource constrained,” says Ball “the hope is that people are going to have to get smarter about who they do what to.”
Violent and serious offenders need the bulk of criminal justice resources, Ball said.
A recent report from the Public Policy Institute of California predicts that some district attorneys will opt for what’s called up-charging when dealing with realignment. Instead of charging someone with a crime that ensures they serve their sentence in county jail, they would charge them with a crime that would land them in state prison in order to avoid the cost of local incarceration.
Both San Bernardino County District Attorney Ramos and Alameda County Assistant District Attorney Meredith dispute this fear. “We would not do that,” Meredith said. “We charge now and we will always charge the appropriate charge for the offense.”
Although the long-term implications of this new legislation are still unclear, there is an unprecedented amount of collaboration within county criminal justice programs and counties statewide to figure out what to do.
Such collaboration and a holistic approach will be key to realignment’s success, Ball said. Over time, counties will track each person handled differently as a result of the legislation and hope to learn how to better deal with this low-risk population.
“It took us a long time to get us into the situation we’re in,” Ball said. “And it’s going to take a long time to get out of it.”