PPI: Preserving the Presumption of Innocence

The harmful impacts of pretrial incarceration during the phase of presumed innocence are well-documented. Research has demonstrated that the more time someone spends in jail, the more likely they are to reoffend. Just two to three days in a cell can result in loss of employment, a vehicle, housing, or custody of a child, with successful life outcomes overall decreasing by over 40%. Those issues are compounded for Black and Brown people who are more likely to be detained even though they’re technically innocent, especially when coupled with the predatory bail industry and ability for the wealthy to buy their freedom. According to the Vera Institute, California has the second-highest pretrial detention rate in the country, according to a report by the Vera Institute of Justice. Roughly 40,000 of the people in California’s jails—more than 50 percent of its total jail population—are incarcerated while awaiting trial.

The Care First Coalition has developed an alternative to our failed pretrial system and the powerful forces that are moving California in the wrong direction. In the interests of preserving innocence, protecting communities disproportionately targeted by law enforcement and prioritizing public safety, Care First has proposed a legislative solution that codifies and standardizes the rules ensuring due process of law required before incarcerating presumptively innocent people pretrial pursuant to California Constitution, Article 1, Section 12. It creates pretrial services agencies to improve court appearance rates. It establishes procedures for courts to create individualized safety plans to protect victims and their communities. It sets forth data collection requirements to ensure transparency and evidence-based decision-making. It eliminates money bail and the use of statistical predictions in pretrial incarceration decision-making.

Even though voters rejected SB 10 and Proposition 25, the Care First Coalition asserts that the will of the public was overlooked by the pretrial pilot projects orchestrated by SEIU, California Judicial Council, Chief Probation Officers of California and Governor’s Office. Even though the California State Legislature rejected the $140,000,000 allocated to the Judicial Council to implement pilot projects guided by the framework of SB 10 and Prop 25 without their most promising outcome of eliminating the predatory practice of bail, the Governor’s Office supported the funding. As a result, probation departments – law enforcement agencies that operate post-conviction – will now be supervising innocent people and enforcing compliance.

In response to this dangerous practice that violates the presumption of innocence, Care First has been in discussions with legislators to gauge their interest for comprehensive pretrial reform. While those negotiations continue, Care First is also offering portions of our Preserving the Presumption of Innocence (PPI) legislation for consideration as we advance a pretrial reform agenda that reverses the current path of punitive measures in accordance with California’s values of protecting human rights and advancing a framework of justice for all.

The Care First PPI proposal is guided by the following principles:

1. The presumption of innocence is one of the cornerstones of an effective and fair system of justice. Jailing people simply because they have been accused but not convicted of a crime is antithetical to democratic values and to the ideals of the American system of justice. Pretrial incarceration should be strictly limited and reserved only for the most extreme cases.

    

2. Pretrial Incarceration results in people being locked in jails for days, months and even years without having been convicted of any crime. From 2012 through 2017, close to half a million Californians were in jail or had to pay bail following felony arrests, but they were never convicted. A quarter million of those were incarcerated based on accusations so weak that prosecutors did not file a case.

    

3. Pretrial incarceration undermines the integrity of our justice system because, frequently, people who are incarcerated pretrial must choose between pleading guilty to the charge in exchange for quick release from jail or continued incarceration if they maintain their innocence. Many plead guilty regardless of actual guilt. These coerced guilty pleas result in criminal convictions that have harmful future impacts on people’s ability to gain employment, housing, and education. Coerced guilty pleas result in probationary sentences that include restrictive conditions, denial of basic rights, and often result in future incarceration.

    

4. Pretrial detention can lead to devastating effects on individuals, their families and their communities. It can threaten employment, housing stability, child custody, mental health and physical well-being. It disrupts family life and relationships. People incarcerated pretrial, even for short periods of time, are more likely to be arrested in the future than those who do not spend time in custody. The harms of pretrial detention target poor people and people in black and brown communities in California.

    

5. Pretrial incarceration costs taxpayers in California millions of dollars each year. In recent years, over 50 percent of the state’s jail populations have been people awaiting resolution of their cases pretrial. Money saved by reducing pretrial incarceration can be invested to improve communities by providing economic development and services, like mental health supports, victims’ services, substance abuse treatment, education and job training, that will address the root causes of crime.

    

6. Placing people awaiting resolution of criminal accusations under supervision of law enforcement, including imposing probation-like conditions, like electronic monitoring, mandatory drug-testing and reporting requirements, amounts to punishment before a finding of guilt. Such conditions should be reserved for only the most extreme cases. Probation departments and other law enforcement agencies are poorly equipped to deliver pretrial services, as their orientation is towards supervision and monitoring, as opposed to working with people to remove barriers to their return to court. Independent, non-law enforcement agencies are far better equipped to deliver these services.

    

7. Money bail creates an unfair system in which poor people face the choice of remaining in jail to assert their innocence, pleading guilty to be released or falling into debt or economic ruin to pay for their freedom. Wealthy people simply pay to obtain all the benefits of contesting their cases from home. Money bail drains resources from poor communities, causing people to lose their savings, borrow from family and friends, sell off property and possessions, and forego paying for essentials, like food and rent, in order to pay for freedom.

    

8. Statistical risk assessment tools, including those that make predictions based on algorithms, are not a fair replacement for money bail. They may be worse than money bail. They dehumanize people by reducing them to statistical risk categories based, not on their own individual circumstances, but on how discreet, out of context facts about them match up to profiles created by comparison to other people. These automated profiles are inherently discriminatory against black and brown people and poor people because they recycle and falsely validate historical bias with a veneer of science. These automated profiles make or inform decisions of freedom and imprisonment. They can be used to increase or maintain pretrial incarceration levels. They have no place in a justice system that values individual responsibility and due process.

    

9. Experience in other jurisdictions has shown that reducing pretrial incarceration neither increases violent crime by those awaiting trial, nor significantly increases the rate of missed court dates, if there are appropriate safeguards. Court-date reminders and other services to help remove barriers to appearance in court have proven to be successful methods of reducing missed court dates.

    

10. California can and should lead the nation in devising fair and just ways to address public safety while decreasing incarceration rates, including pretrial incarceration rates. To preserve the presumption of innocence, California should limit pretrial punishment to those very few exceptions who pose an identifiable threat to others, and courts should only take away a person’s liberty following hearings that require scrupulous adherence to due process of law.

     

11. The Covid-19 pandemic has exposed the danger to public health posed by jail crowding which is driven, in large part, by pretrial incarceration. Disease spread in jails has had catastrophic effects on the health of people held in custody and on their communities. Reducing incarceration will mitigate those effects. California’s experiment with $0 bail during the Covid-19 crisis revealed that substantially reducing pretrial incarceration by simply releasing people does not increase crime rates.