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This message is from outside the City email system. Do not open links or attachments from untrusted sources. letter re. ROGC 22-187
Tyler Haskell < >
Tue 4/26/2022 7:24 AM
To: Rules and Open Government Committee Agendas <[email protected]> 1 attachments (667 KB)
4.21.22 SCFHP Response to SJ Crime Memo.pdf;
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Please find our attached letter in response to the memo submitted for this Committee’s consideration under C.1 of the April 27 meeting agenda. I will be present at the meeting in case there is any discussion about our letter.
Thanks,
Tyler
Tyler Haskell
Interim Compliance Officer
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www.scfhp.com
Santa Clara Family Health Plan
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Thank you.
April 21, 2022
The Honorable Chappie Jones
Chair, Rules and Open Government Committee
200 East Santa Clara Street
San Jose, CA 95113
Re: Memo entitled Addressing Rising Crime & Expanding Treatment for Arrestees in San Jose
Dear Chairperson Jones,
We read with interest the memo from Mayor Liccardo, Councilmember Carrasco, and Councilmember Mahan, that the Rules Committee is scheduled to consider at its April 27 meeting. We share the concerns of its authors about the effects of drug addiction on public safety and the local quality of life. Because the memo mentions our organization in this context, we write to clarify our role with respect to the provision of drug treatment.
Santa Clara Family Health Plan (SCFHP) is a public agency established by the County of Santa Clara in 1995 to serve as a Medi-Cal managed care plan for low-income residents of the County. We currently serve nearly 300,000 individuals, representing about 80% of Medi-Cal enrollees in the County (Anthem Blue Cross covers the remaining 20%.)
Medi-Cal—California’s version of Medicaid—has several delivery systems. The managed care delivery system, in which SCFHP operates, provides the broadest set of services, including primary, specialty, inpatient, and non-specialty mental health care.
There are separate delivery systems for dental care, specialty mental health, and substance use treatment. Those with a substance use disorder are served under the Drug Medi-Cal Organized Delivery System, which is administered by the County Behavioral Health Services Department. Decisions about which services are covered under which delivery systems are not local decisions—they are made by the California Department of Health Care Services, and are approved by the federal Centers for Medicare and Medicaid Services.
On page 2 of the memo, there is a directive to “Determine how the City and other partners—including the County and local health plans, such as Anthem or SCFHP—can work together to identify, construct, and operate quick-build housing or rehabilitated motels that incorporate outpatient, on-site detoxification and treatment of drug-involved arrestees released by the courts.” Similarly, on page 10, the memo states that the City may “contract with the County or other local health plans” to launch such a program.
We wish to be helpful, but want to temper the Committee’s expectations about our potential role. As a Medi-Cal managed care plan, we would be able to provide covered Medi-Cal services to our members living in the housing discussed in the memo. We would not be able to cover drug treatment services nor operate a treatment facility, as these services and associated funding fall under the State’s contract with the County.
The memo also repeatedly mentions the potential use of CalAIM funding to pay for “treatment and staffing” of the proposed new drug treatment facility. CalAIM is a term used by the State to refer to a set of wide-ranging Medi-Cal initiatives, some of which involve administrative changes, others which entail new programs and services. We are unaware of any CalAIM initiatives that increase funding for drug treatment programs or that would give SCFHP a role in drug treatment coverage.
There are CalAIM initiatives that could benefit arrestees living in the housing envisioned in the memo. For example, Medi-Cal managed care plans like SCFHP recently launched a new Medi-Cal benefit known as Enhanced Care Management, which is intensive case management for the most high-need members. This could help link individuals to primary care, substance use treatment, and mental health services. Our new Community Supports program includes housing transition navigation, housing deposits, and housing tenancy services (launching in July). Additionally, we provide free transportation for our members to and from any health-related appointments, regardless of whether we cover them.
SCFHP supports creating effective pathways to drug treatment, which have the potential to both prevent crime and serve as alternatives to incarceration. As the Committee and Council consider implementing the actions proposed in the memo, we hope this letter helps to clarify some of the possible contributions SCFHP could make to this effort, as well as some of our limitations. We look forward to further discussing these ideas with you and other potential partners.
Sincerely,
Christine M. Tomcala
Chief Executive Officer
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Letter from Public Defender on Mayor Liccardo memorandum of April 7, 2022 O'Neal, Molly < >
Tue 4/26/2022 3:13 PM
To: Rules and Open Government Committee Agendas <[email protected]>;City Clerk <[email protected]>
Cc: Jones, Chappie <[email protected]>
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Hello Council Member Jones, San Jose Rules Committee and City Clerk, ‘
Please find attached a letter related to agenda item 1 (Addressing Rising Crime & Expanding Treatment for Arrestees in San Jose) on the regular calendar of the Joint meeting for the Rules and Open Government Committee and Committee of the Whole for tomorrow, April 27th, 2022.
Thank you,
Molly
Molly O’Neal
Chief Public Defender, Santa Clara County
Pronouns: She/her/hers
County of Santa Clara
Law Offices of the Public Defender
FAX
Molly O’Neal
Public Defender
Chief Assistant Public Defender: Jose G. Guzman
Assistant Public Defenders: Charles Hendrickson, Sarah McCarthy, Damon Silver Date: April 26, 2022
RE: Addressing Rising Crime and Expanding Treatment for Arrestees in San Jose San Jose City Council Rules Committee:
My name is Molly O’Neal. I am the Public Defender for Santa Clara County. I write in response to the April 7, 2022 memorandum authored by Mayor Sam Liccardo and Councilmembers Magdalena Carrasco and Matt Mahan. The memorandum outlines specific concerns and posits some suggestions that warrant further discussion here. The memorandum also contains inaccuracies which should be corrected. I would urge us all to mindfully avoid a return to the outdated philosophy of incarceration as a solution to our current public health crisis that includes drug addiction and homelessness. Business owners deserve assistance but not in the form of incarceration and a return to failed bail policies.
We are fortunate to live and work in San Jose, routinely listed as one of the safest large cities in the country. We remain safe in the long term as a result of improved approaches to persons involved in the criminal legal system. In the past, incarceration was employed as a first response, whereas current practice causes us to invest in people, get them safely released from custody, back to work and reunited with their families. Rather than simply warehousing them in jail without services, we now use behavioral and public health models to engage individuals in treatment. We work collaboratively with county and city partners, always engaging in evidencebased practices while making data driven decisions.
A recent example is the innovative, early representation model, Pre-Arraignment Representation and Review (PARR). PARR is a collaborative effort between the Office of the District Attorney, the Office of the Public Defender and the Office of Pretrial Services. This model causes public defenders to engage clients at the outset of the criminal process, before arraignment, to learn and provide client-specific information to the court to effectuate safe releases of persons arrested and awaiting trial. Deputy public defenders gather information, work with the Office of Pretrial Release and shares the information with the District Attorney and the court. This is in conjunction with In re Humphey hearings. Humphrey stands for the principle that each person that comes before the court has the right to an individualized determination regarding his custodial status. In such hearings, a deputy public defender provides information to the court about her client’s ability to pay bail and explore whether any less restrictive alternatives to incarceration exist. Individual, independent bench officers determine whether a person may be released safely into the community, considers the person’s ability to “make” bail, and, in some instances determines that the person should be detained without bail, commonly referred to as no April 26, 2022 Page 2
bail allowed. There is no evidence that judges are not following the law, nor that arrestees are being released without the required Humphrey individualized determination. In fact, judges have more information than ever before and at an earlier stage in the proceedings. It is alarmist to cite a handful of cases to support the generalized notion that individuals on pretrial release are inherently dangerous. This ignores the thousands of individuals safely released from the jail who make their court dates and do not reoffend. Many of the individuals listed on p. 5 of the memorandum were not on pretrial release and had resolved their other cases. It is critical to be focused on the exact posture of particular cases in order to avoid alarming the public and disseminating inaccurate information.
Pretrial Statistics:
The memorandum cites to an important pretrial release statistic that is misleading. There are two factors tracked by the Office of Pretrial Services which should not be conflated. One factor is reoffense. Re-offense by those on pretrial release is historically very low, in the 5% to 7% range.
The other is appearance in court. When looking at any rate of failure to appear, the pandemic context must be considered. Hundreds of people had their criminal court dates continued without a future court date when the court and the community locked down in March 2020. The system is still trying to contact many of those people who literally had no idea when their case was next set. Furthermore, transportation, poverty, mental illness and homelessness all impact a person’s ability to make it to court. Those are not criminal factors and should not be highlighted in the pretrial context. To look meaningfully at pretrial success, you must examine appearance rate and re-offense separately, and remain cognizant of the way in which the pandemic skewed appearance rates. A better way to examine the data would be to look at a 20-year data set, rather than a pandemic, snapshot of pretrial release. Doing that would highlight the fact that most people on supervised release do not reoffend, and most make all of their court dates.
Factors Affecting Release Decisions:
It cannot be denied that the community as a whole is in need of more detoxification and inpatient beds. To that end, the county is adding a number of such beds in the near future as announced on April 26, 2022. However, the memorandum is incorrect in asserting that the court is not applying In re Humphrey correctly or that somehow more criminal defendants are being unsafely released as a result of Humphrey.
The memo states:
“The problem appears compounded by the interpretation that some judges have applied to the California Supreme Court’s 2021 decision In re Humphrey… to release many more defendants.” (Page 6) This is a groundless attack on the way Humphrey is being applied in our County. (Footnote 2 correctly states that Humphrey requires an individualized determination of the person’s ability to pay bail and whether any less restrictive alternatives to incarceration exist to ensure the person’s return to court and protect public safety.) Without any facts, the body of the memorandum asserts that Humphrey is being wrongly interpreted by Santa Clara County judges to simply release more folks pre-trial. The memorandum cites no specific situations where this occurred and no statistics to support the claim.
April 26, 2022 Page 3
The statistics illustrate the contrary. There is a large percentage of defendants held with no bail allowed. In each instance, that means the judge engaged in a Humphrey analysis and determined that public safety and flight risk considerations warranted pre-trial detention regardless of their ability to pay bail. Most of the remainder of defendants held pre-trial have bail set beyond their ability to pay. Again, that means that after the individualized Humphrey determination and consideration of the person’s ability to pay, the judge set bail above that amount to protect public safety and ensure his return to court.
The truth is that the court engages in a more meaningful release/detention review of each accused person than it did prior to the Humphrey decision, and that means safer and better releases.
Why Should the City Get Involved?
In this section of the memorandum, the city posits several methods by which to provide information to judges making release decisions. This is a very fraught position to take, in large part because reading between the lines, it sounds like advocating for use of any and every tool to ensure a person is detained in the jail rather than released. Again, we cannot return to the failed detention policies of the past that resulted in the greatest era of mass incarceration in modern history, impacting communities of color disproportionately and wrecking them in the process.
Every person is entitled to an individualized determination of release and policies that attempt to bully judges or predetermine results are dangerous and illegal.
Conclusion:
There is no doubt that we have a drug problem, and we need more services in the community.
To that end, we commend the mayor for his suggestion that the city seek funding from the state to secure those services. What we do not need is a reactive and frustrated response replete with inaccurate narratives and misleading statistics; the same narratives which fueled support for the flawed and unjust mass incarceration policies of the 1990s. We have carefully moved away from those failed, expensive and unjust policies. We must continue to understand that we can safely release and supervise the vast majority of pretrial detainees, who are all legally presumed to be innocent. We have a moral imperative to do so.