By Deepak Premkumar, Andrew Skelton, Magnus Lofstrom, and Sean Cremin

In April 2020, the Judicial Council of California responded to the COVID-19 pandemic by implementing an emergency bail order, sometimes called “zero bail,” to reduce viral transmission in courts and jails. The policy maintained cash bail for more severe offenses but set bail at zero dollars for most misdemeanors and felonies, sharply increasing the number of people who were immediately released after being arrested. Although the statewide mandate lasted for roughly two months, many county courts temporarily adopted similar policies, and until July 2022, most Californians lived in a county with an emergency bail order in place. California’s emergency bail orders dramatically altered the pretrial process and drew concerns that those released would commit additional crimes. This report examines the impact of these emergency bail measures on the likelihood of arrested individuals being rearrested soon after release. The disruptive nature of the pandemic was likely a key factor in the temporary increase in overall rearrests when emergency bail orders were in place. Notably, increases in felony rearrests did not subside over time or when emergency orders were revoked. While our data do not allow us to determine why this was the case, arrest, and booking rates, as well as jail populations, have stayed well below pre-pandemic levels, suggesting the possibility that some pandemic-era practices may have persisted, which could affect more recent felony rearrest rates. Because their goal was to protect public health, emergency bail orders set a unilateral policy of detention or release based on the accused offenses—a marked difference from broader bail reform efforts that have implemented tools such as assessing arrested individuals’ risk to public safety and not appearing in court, as well as monitoring and/or providing pretrial services to the accused if they are released pretrial. Our findings suggest that pretrial detention policy may benefit from a more holistic measure than the arresting offense when assessing public safety risk, and pretrial risk assessments could be a promising approach.

  San Francisco:  Public Policy Institute of California, 2024. 33p.   

By Lore Joplin, Justice System Partners, Maureen McDonnell, , et al.

In January 2023, California became the first state in the nation to receive approval from the federal Centers for Medicare and Medicaid Services (CMS) for a Medicaid Section 1115 demonstration request to amend Medicaid’s inmate exclusion. People detained in jails and prisons have high rates of chronic and acute health needs, including physical, mental health, and substance disorders and reentry is a high-risk time. A key to addressing these reentry risks is addressing people’s health needs while they are incarcerated and building continuity of care from jail to community when they are released. California’s waiver, called California’s Advancing and Innovating Medi-Cal (CalAIM), and the specific component focused on individuals who are transitioning out of the criminal justice system, the Justice Involved (JI) initiative, will for the first time provide a targeted set of Medicaid-covered services right before someone is released from prison or jail. These services aim to smooth reentry transitions from jail and prison to the community, establish better connections to community-based providers at release, and enhance access to necessary care and support. California’s approach is designed to reduce the high risk of post- release mortality, morbidity, and other adverse outcomes, including repeat contact with the criminal justice system, by bringing Medicaid financing and coverage standards to bear. The work to implement California’s waiver and make these changes a reality is demanding, involving multiple partners at the state, county, and local level who have not previously worked together at this level of vital cross-system collaboration. Implementation of these changes is well underway, and county-level changes will roll out over the next two years, starting in October 2024. This paper highlights California’s implementation approach, focusing on the county-level impacts on jails, health care providers, and reentry processes. It also explores several implementation challenges and the steps the state and the counties have taken thus far to implement this change.

Safety and Justice Challenge. Org: 2024. 42p.

By Mike Males

Media reports, politicians, and law enforcement lobbies are manufacturing a false picture of crime as Californians prepare to vote. Backers of anti-justice reform policies are falsely blaming liberal reforms and prosecutors for a non-existent “crime wave.” The anti-reform campaign is also exploiting public anger that retail thieves are “getting away with crime,” while the media fails to hold law enforcement and conservative jurisdictions accountable for their own failed practices. California’s criminal justice statistics (BSCC 2024; CDCR 2024; DOJ 2024) clearly show: 1) California’s 23 Republican-voting counties* consistently suffer worse trends in murder, violent crime, gun violence, and drug abuse than the 25 Democratic-voting counties or the 10 counties with mixed-voting patterns. 2) California’s conservative inland and rural counties suffer the state’s worst homicide trends. 3) All counties show similar property crime trends and rates. 4) California’s liberal counties2 have gotten tougher on crime, especially in the post-2010 reform era, incarcerating a greater share of people arrested – even though conservative counties have long incarcerated a greater share of their overall populations. 5) The real reason the public has the impression that retail thieves are “getting away with crime” is not reforms, but because law enforcement in all jurisdictions, regardless of politics, are making arrests in far fewer crimes today than 30 years ago. Law enforcement’s plunging “crime clearance rate” will be detailed in an upcoming report. 

San Francisco; Center on Juvenile and Criminal Justice 2024. 7p.  

By  Mia Bird, Omair Gill, Johanna Lacoe, Molly Pickard, Steven Raphael and Alissa Skog

Sentence enhancements are used to add time to an individual’s base sentence. California uses over 100 unique enhancements. This report analyzes data from the California Department of Corrections and Rehabilitation (CDCR) to understand the role of sentence enhancements in California’s corrections system. It finds that enhancements lengthen average sentences and are more likely to impact the sentences of men and Black and American Indian people who are sentenced to prison, application varies by county, and that enhancements contribute to the overall size of the state prison population. KEY FINDINGS • Prevalence: Roughly 40% of individual prison admissions since 2015 have sentences lengthened by a sentence enhancement. Among the currently incarcerated, the prevalence of enhanced sentences is much higher, impacting the sentences of approximately 70% of people incarcerated as of 2022. • Sentence length: Sentence enhancements increase the average sentence by roughly 1.9 years (or 48%) for all admissions. The impact is larger for people receiving longer sentences. • Four enhancement types account for 80% of sentence years added since 2015. Those four enhancements include the state’s Three Strikes law, firearm enhancements, the nickel prior (which adds five years for a prior serious offense), and gang enhancements. • Racial, ethnic, and sex disparities: Sentence enhancements are more likely to be applied to men. Black people and American Indian individuals are the most likely to receive enhanced sentences, followed by Hispanic people, White people, and Asian or Pacific Islander people. • Potential drivers of disparities: Most, but not all, of the inter-racial and inter-sex disparities in the use of enhancements can be explained by group-based differences in case characteristics observable in CDCR data, including the number of prior prison commitments, the number of conviction charges, the most serious conviction offense, and the county of sentencing. • County variation: Enhancements are applied unevenly across California counties, with the lowest application rates in Bay Area counties and Southern California coastal counties, and the highest rates among far Northern counties, the counties in the Central Valley, and Inland Empire counties.   

Los Angeles: California Policy Lab, 2023, 57p.

By: Omair Gill, Mia Bird, Johanna Lacoe, Molly Pickard, Steven Raphael and Alissa Skog

Consecutive sentencing is a practice where people serve sentences for separate convictions sequentially rather than concurrently. We analyze the application of consecutive sentences among all people admitted to California’s prisons since 2015, as well as the population of people incarcerated as of March 2023. KEY FINDINGS: • Frequency. Most prison admissions (56%) are ineligible for consecutive sentencing because they do not involve convictions for multiple offenses. Among admissions with multiple convictions, half (51%) receive consecutive sentences. In total, consecutive sentences are applied to less than a quarter of prison admissions in California (22%). • Contribution to sentence length. Overall, the time added by consecutive sentences increases the average prison sentence of the entire prison population by 8.5 months (roughly 13%). ◦ Among those admitted with consecutive sentences, it increases the average sentence by 35%, or three years (from 8.6 to 11.6 years). ◦ Consecutive sentences typically involve either the full sentence for an additional offense tagged on to the primary sentence or an additional sentence equal to one-third the prescribed sentence for the lesser ofense. While only 20% of consecutive sentences are for full additional prison terms (80% are for one-third terms), full-term sentences account for roughly 70% of the additional sentence years added through consecutive sentences since 2015. • Contributing factors. Among cases with multiple convictions, consecutive sentences are more likely to be applied when criminal cases involve offenses that occurred in multiple counties, the offenses are serious or violent, the most serious offense is a crime against a person, or the individual has prior prison admissions for serious or violent crimes. ◦ Multivariate models show that the likelihood of a consecutive sentence increases with the number of prior prison admissions, number of convictions, and age of the person admitted. People admitted with second- and third-strike enhancements are more likely (by roughly 12 to 18 percentage points) to receive consecutive sentences relative to admissions with multiple convictions without these enhancements ◦ Offenses receiving one-third consecutive sentences are more likely to involve property offenses, weapons offenses, as well as offenses like evading a police officer or identity theft. By contrast, the offenses receiving full-term consecutive sentences often involve crimes against a person, child victims, and various sex offenses. • County variation. The use of consecutive sentences varies across the state. Counties in far Northern California, excluding the coast, as well as those in the Central Valley, are more likely to impose consecutive sentences. Bay Area counties and most counties in Southern California are less likely to impose consecutive sentences. ◦ Average differences across counties in the types of cases resulting in a prison admission do not explain cross-county differences in the use of consecutive sentencing. ◦ American Indian/Alaskan Native and White people are more likely to receive consecutive sentences largely because they tend to be convicted in counties that are more likely to use consecutive sentencing. The opposite is true for Black, Hispanic, and Asian people. .   

Los Angeles: California Policy Lab, 2024. 39p.

By Elisabeth Semel, Dagen Downard, Emma Tolman, Anne Weis, Danielle Craig, and Chelsea Hanlock

Racial discrimination is an ever-present feature of jury selection in California. This report investigates the history, legacy, and continuing practice of excluding people of color, especially African Americans, from California juries through the exercise of peremptory challenges. Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval. In California, peremptory challenges are defined by statute. Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service. These strikes were part and parcel of the systematic exclusion of Blacks from civil society. We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes. In 1978, in People v. Wheeler, our state supreme court was the first court in the nation to adopt a three-step procedure intended to reduce prosecutors’ discriminatory use of peremptory challenges. Almost a decade later, in Batson v. Kentucky, the United States Supreme Court approved a similar approach with the goal of ending race-based strikes against African-American prospective jurors. An essential feature of the “Batson/Wheeler procedure” is that it only provides a remedy for intentional discrimination. Thus, at step one, the objecting party must establish a sufficient showing—known as a “prima facie case”—of purposeful discrimination. At step two, if the trial court agrees that the objecting party has made such a showing, the burden of producing evidence shifts to the striking party to give a “race-neutral” reason. At step three, the trial court decides whether the objecting party has established purposeful discrimination. If the court finds that the striking party’s reason was credible, it denies the Batson objection. In his concurring opinion in Batson, Justice Thurgood Marshall warned that Batson’s three-step procedure would fail to end racially discriminatory peremptory strikes. He anticipated that prosecutors would easily be able to produce “race-neutral” reasons at Batson’s second step, and that judges would be ill-equipped to second-guess those reasons. Further, Justice Marshall doubted Batson’s efficacy because the procedure did nothing to curb strikes motivated by unconscious racism—known more often today as implicit bias. Justice Marshall was prescient: 34 years after Batson was decided, prosecutors in California still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries. The Berkeley Law Death Penalty Clinic explored the shortcomings of the Batson procedure. Our report investigates how the California Supreme Court went from a judiciary that championed the eradication of race-based strikes to a court that resists the United States Supreme Court’s limited efforts to enforce Batson. We conclude that Batson is a woefully inadequate tool to end racial discrimination in jury selection.

Berkeley, CA: University of California at Berkeley, School of Law, 2020. 166p.