By David M. Greenwald
Woodland, CA – I was interested to see whether Jeff Reisig could actually pull off some sort of transformation and move himself in a reform direction or whether it was mainly smoke and mirrors.
Reisig, elected DA in 2006 as a traditional tough-on-crime prosecutor with perhaps a twist, has brought in Measures For Justice to make his prosecution data more transparent. As I pointed out on Wednesday, in that respect he earns legitimate plaudits, but he does need much more rigorous analysis than was shown on Tuesday night.
He said, “I’m a big believer that frankly prison is not a place where people go to get well—certain people have to go to prison, no doubt, but a lot of people shouldn’t go to prison because we have better options right here at home. That’s criminal justice reform that we’re going to talk about tonight.”
His message—prison doesn’t work (I agree), not everyone needs to be in prison (I definitely agree), Prop. 47 and Prop. 57 are bad (big disagreement there) and the answer is diversion (I’m confused by this).
The most troublesome aspect of his talk (aside from the lack of tough questions coming from host Marcus Wiggins and Supervisor Angel Barajas) were his comments on racial disparities.
Remember, it was a little over a year ago that he publicly attacked Public Defender Tracie Olson when she correctly pointed out the disproportionate number of Blacks in the Yolo County Jail. Over the last year, he has partly walked this back—not in the sense of apologizing to the Public Defender for overreacting but in that he has sort of acknowledged that there is a problem.
The data that he presented on Tuesday was not output data from his office, but rather input data from law enforcement. The cases referred to the prosecution from law enforcement. And what we see is the number of cases referred from law enforcement has dropped across the board.
(We need better data all around here because there are some massive disconnects between this number and the complaint that violent and property crime is rising and only drug offenses are falling, but we’ll leave that alone in this piece).
What we see is that in 2016, there were a little over 4000 cases involving whites who were arrested, a little under 3000 involving Latinos and around 1200 or so involving Blacks. Now those numbers are 2346 for whites, 1993 for Latinos and 942 for Blacks. So racial disparity went way up even as overall cases referred went way down.
The question he tried to address but never answered is what is driving this trend.
“You can’t ignore discrimination,” he said. “You can’t ignore systemic racism in the system.”
When Jonathan Raven was presenting this data for the Police Advisory Commission in July, he put the blame squarely on the cops.
I thought that’s where Reisig was going as well, but then he turned.
Reisig said, “We need to look at beyond just are the cops doing something wrong? Is that possible? Sure. Do we need to look at that? Yes. Do we need to make sure that there is not overt or implicit discrimination or bias at every single level of the criminal justice system? Yes. We need to root it out, get rid of it, but there’s also deeper things going on.”
He acknowledges the possibility of systemic racism, but then in the next breath, seemingly discounts it.
“We have to just acknowledge that there’s things that are happening at home, at school. Um, not enough church, I don’t know, but we need to start talking about this stuff as a community because what this data shows us clearly is that there is a disproportionality or disparity of blacks in being referred to the DA’s office,” he said.
He didn’t come right out and say it, just as he didn’t come right out and dismiss the idea of systemic racism, but you can see that’s what he’s thinking. He is talking about families and church. He is thinking out loud here for sure, but that is telling—he is, in his mind at least, still putting the blame for these disparities on communities of color themselves.
No one on the panel called him on this.
This isn’t going to be solved by racially blind charging—because the problem here is really systemic and it starts on the input side.
First of all, the decline-to-file rates show no difference in the rates of do not file between whites, Blacks and Latinos.
At first you think, oh that’s a good thing. This is where having a data analyst and subjecting Reisig to tougher questions would be more helpful than what we saw on Tuesday.
The problem is that if you have an input that is widely disproportionate, and you dismiss cases in a manner that is roughly equal across the board, what is the output going to be? Basically you are baking in the disparities. In fact, you actually could be making them worse.
Moreover, the decline-to-file statistics are not based on some sort of notion of the need to decline filing on certain classes of charges—it is simply based on perceived ability to prove the charges beyond a reasonable doubt.
“I make a decision whether I can prove the case beyond a reasonable doubt to a jury of 12 people from Yolo County. And if I don’t believe that I can prove it beyond a reasonable doubt, I don’t file it. It’s called a rejection,” he said.
That’s fine. But that is not the same as declination.
For example, LA DA George Gascón issued a memo shortly after being elected saying his office would no longer prosecute a range of misdemeanor crimes, from resisting arrest to drug possession to making criminal threats. The memo spells out which crimes should be dismissed or declined before arraignment.
There is research out of NYU to back up this approach. The study led by NYU Professor Anna Harvey, director of NYU’s Public Safety Lab and a coauthor on the paper, found that “higher declination rates led to lower criminal contact for the individuals who pass through the system. In other words, it promoted public safety, to refrain from bringing down the hammer on even more than diversion program and I know we turned to diversion programs so often because they are more lenient.”
But the empirical research out of Suffolk County “has shown us that even the decision to leave the arrest as it is and not convert it into a case itself has benefits for those individuals, those families and those communities.”
But this is not what DA Reisig is doing. He is trying to reform the system through diversion, while opposing lowering a whole class of crimes from simple drug possession to petty theft to misdemeanors, and then use the criminal justice system to force those people into diversion programs.
Diversion is better of course than prison, but the study found that defendants prosecuted for nonviolent misdemeanors had significantly higher risks of subsequent arrest and prosecution than those not prosecuted. These later arrests included arrests for violent and felony offenses. Even those who went through diversion.
So Reisig again is data challenged here, he is looking at recidivism in prison versus diversion, but not looking at recidivism in diversion versus declination. That’s a key piece of data he needs to look at, but no one on his panel was ready to challenge him on this stuff.