In an op-ed this week in the Huffington Post, San Francisco District Attorney George Gascon wrote, “As a prosecutor and chief law enforcement leader with more than 30 years of service, I believe it is incumbent upon prosecutors to identify new models of public safety that reduce both incarceration and unwarranted racial disparities. While these are challenging goals, a modern justice system that embraces data and evaluation can indeed make real progress.”
He argued that risk-based assessment tools can provide prosecutors with the opportunity to redefine how they conduct their work. He wrote, “Using historical data from our work — what cases we charged and how we resolved them–we can determine with much greater accuracy who is dangerous and needs confinement and who can safely be treated in the community. We can also identify where our decisions may have been influenced by inappropriate factors such as race or ethnicity.”
Traditionally, prosecutors have used some science, with varying levels of success in areas limited to forensics and expert witness testimony. “Research-based decision making has not had a prevalent role in our work,” he said.
“Thankfully, advancements in risk-based assessment tools can improve decision making about pretrial release and appropriate sentencing options,” he said.
Mr. Gascon added, “Refusing to use our own data about our prior successes and failures, with the goals of making better decisions going forward, is irresponsible. Nearly every profession has been improved through data collection and analysis, and prosecution should be no different. Our profession has historically been cloaked in tradition, often to the detriment of improving outcomes.”
“As the country grapples with the reality of mass incarceration, we must embrace tools that can help us safely reduce our prison and jail population, eliminate unwarranted racial disparities, and improve safety for victims and our community at large,” he argued.
“Risk assessment tools help us answer many questions, including who should be released from custody before trial, who is likely to reoffend and how, and what interventions are likely to be most effective. Even jurisdictions like San Francisco, where we have significantly reduced the use of confinement over the past two decades, can benefit from tools that help answer these questions.”
Part of that equation is changing how we handle pre-trial custody. Mr. Gascon noted success in San Francisco in reducing “the presence of low-risk individuals and those with limited criminal histories from our jails through planned and deliberate policy changes.”
A large percentage of the population that is held in jails currently are there on pre-trial custody situations. These are people who have not been convicted of any crime. Many will ultimately be released for time-served or probation.
As the Sacramento Bee in an editorial asked in 2011, “Who, really, needs to be detained before trial, and who should be allowed to remain in the community while his or her case proceeds? Counties need to take a hard look at the risks arrestees pose to public safety while they await trial.”
The Bee added, “In Sacramento County, 31 percent of the pretrial population has had no previous arrests, or only one arrest. Forty-three percent have had no prior convictions. Sixty-three percent were arrested for nonviolent property, drug or alcohol crimes. Most are local people and are not a flight risk.”
The Contra Costa Times reported last year that roughly 65-70 percent of those in county jail custody are awaiting trial and that number is up to 85 in the Bay Area.
One of the big problems with bail, as San Francisco Public Defender Jeff Adachi told the Vanguard last November, is that it is class-based. Those who can afford to put up the bail get released from jail. The poor have to be incarcerated.
“It’s unfair because people who are released from jail are simply those who have money. You can get out on bail if you’re charged with murder if you have the money,” Jeff Adachi said. “And yet if you’re charged with criminal trespass, and you don’t have $500 to post bail, you’re going to be in jail.”
“The presumption of innocence in this country is meaningless because for most of our clients who are poor people, they are incarcerated pending their trials,” he said. “It places much more pressure on them for innocent people to plead guilty. It creates a disincentive for cases to be fully investigated and litigated.”
Utilizing these new approaches, Mr. Gascon cited statistics showing “drug prosecutions have declined from 63 percent of our felony caseload in 2009 to 26 percent in 2014, allowing us to focus more resources on serious and violent crimes.” Nevertheless, he said, “we still have a disproportionate number of African Americans in our local jails. We must consider every tool available to understand this imbalance and identify safe ways to correct it.”
The implementation of risk-based tools at key decision points is “the next step for San Francisco to reduce disproportionate minority contact and continue to reduce our jail population safely.”
He wrote, “My office is excited to partner with the Arnold Foundation to facilitate adaptation of the Public Safety Assessment. We anticipate that the implementation of this tool will assist us in further reducing our jail population and unwarranted racial disparities in the system. Other communities across the country are pursuing the same goals through the MacArthur Foundation’s Safety and Justice Challenge, a new initiative to change the way America thinks about and uses jails.”
“Modern and equitable justice requires that all criminal justice partners refine our interventions and reform our approaches to the work. Prosecutors play a critical role when charging and setting the direction of cases. We would be foolish to ignore validated tools that can improve our ability to make the community safer for everyone. As gatekeepers of the criminal justice system, prosecutors have both a legal and ethical duty to ensure the system operates effectively to protect public safety, and is free of bias. Embracing data analysis and tools to hone our decision making is an obvious next step in this pursuit,” he concluded.
—David M. Greenwald reporting