OVERVIEW OF THE PROCESS
FROM ARREST THROUGH
RELEASE/DETENTION IN THE
CRIMINAL JUSTICE SYSTEM IN
SANTA CLARA COUNTY
County of Santa Clara
Public Safety and Justice Committee
Joint Meeting with San José Public Safety, Finance and
Strategic Support Committee
September 8, 2022
THE PROCESS FROM ARREST
THROUGH RELEASE/DETENTION
Greta S. Hansen, Chief Operating Officer
Kavita Narayan, Assistant County Counsel
Ken Binder, Undersheriff
James Gibbons-Shapiro, Assistant District Attorney
Charlie Hendrickson, Assistant Public Defender
Matthew Fisk, County Director of Pretrial Services
Antonio Fernandes, Captain, Sheriff’s Custody Bureau
Sandra Pacheco, Law Enforcement Records Supervisor,
County Department of Correction (Admin Booking)
2 CRIMINAL JUSTICE PARTNERS
• City Law Enforcement Agencies (LEA)
and Sheriff ’s Office Enforcement Bureau
• Dept. of Correction – Admin Booking
• Sheriff ’s Office Custody Bureau
• Office of Pretrial Services
• District Attorney’s Office
• Public Defender/Alternate Defender
• Other Criminal Defense Counsel
• Probation Department
• Superior Court (State of California)
• County Health Services & Treatment
• City & County Housing Services
• Community-Based Organizations Providing
Services & Treatment
• Office of Reentry Services
3 CONTEXT
4 Our criminal justice system is complex and highly regulated by constitutional law and state statutes. It is also affected by local policy set by the Superior Court, law enforcement agencies, and others.
Under state and federal law, freedom while charges are pending is the rule; pre-trial detention can only be ordered by the Superior Court, and only under limited circumstances.
There have been significant changes in state law regarding who can lawfully be held in custody pre-adjudication.
The COVID-19 pandemic required significant reduction to the jail population to protect inmates and jail staff.
CONTEXT (cont.)
5 The statewide and local emergency “$0 bail” orders were issued in 2020, the last of which recently expired in Santa Clara County.
The pandemic significantly worsened backlogs in criminal court, causing delays that have resulted in longer pre-trial detention.
The County’s jails are the subject of two consent decrees, with compliance monitored by the U.S. District Court.
The jail facilities are antiquated. Providing required treatment, out-of-cell time, and other critical services grows increasingly challenging as the population rises.
Many community members are struggling with mental illness, substance use disorders, and homelessness, which often bring them into contact with law enforcement and into the criminal justice system.
SHARED GOALS
6 • Protecting community safety and wellbeing
• Ensuring all arrestees and criminal defendants
are afforded due process
• Operating a just, equitable, lawful, and efficient criminal justice system
• Decreasing unnecessary pretrial detention
• Ensuring that mental illness, substance use disorder, and homelessness are not criminalized
• Fostering effective communication and collaboration
between criminal justice stakeholders
Release or
Detention
Possible
OR/SORP
or Modified
Bail
Amount
PreArraignment
Judicial
Review
Jail
Booking;
Possible
Release on
Bail
Initial
Encounter
with Police;
Cite &
Release
OVERVIEW OF ARREST TO
RELEASE/DETENTION PROCESS
7 OPPORTUNITIES FOR RELEASE
AT OR AFTER INITIAL ENCOUNTER
WITH LAW ENFORCEMENT
Four potential points where an arrestee may obtain
release from custody while criminal
charges/adjudication are pending:
1. at point of initial encounter with law
enforcement;
2. at point of booking at the jail;
3. after booking but pre-arraignment; or
4. by seeking release at some other point in
adjudication process.
8 1. Initial
Encounter:
Arrest/Potential
for Citation and
Release
STATE LAW
• Under the Penal Code, law enforcement officers MUST cite and release most misdemeanor arrestees.
• Exception: if law enforcement determines arrestee meets a statutory “reason for nonrelease”:
• intoxication
• need for medical care
• outstanding arrest warrant
• inability to provide ID
• release would jeopardize prosecution
• reason to believe arrestee would abscond
• arrestee demands to be taken before a judge or refuses to sign citation
• Arresting officer still may release someone under these circumstances at their discretion or may bring arrestee to jail to be booked. • Anyone arrested for a felony is taken to jail to be booked. 9 Key criminal justice
partners involved:
Law enforcement agency:
arresting officer in the
field (city police, Sheriff ’s
Office Enforcement
Bureau) encounters
individual, determines
whether to cite and
release or arrest and
transport.
10 LOCAL POLICY IMPACTS
• 2017 Countywide Intake and Release Guidelines
• Goal to standardize cite and release practices for
misdemeanors in the field across LEAs.
• Under the guidelines, anyone arrested for a
misdemeanor offense for which bail would be up to
$15,000 should be cited and released, and not taken to
jail for booking.
• Superior Court Emergency Cite and Release Orders
• From April 2020 through July 2022, the Santa Clara
County Superior Court also authorized law
enforcement “to issue citations in the field” for felony offenses with scheduled bail up to $25,000.
1. Initial
Encounter:
Arrest/Potential
for Citation and
Release (cont.)
Key criminal justice
partners involved:
Law enforcement agency:
arresting officer in the
field (city police, Sheriff ’s
Office Enforcement
Bureau) encounters
individual, determines
whether to cite and
release or arrest and
transport.
2. Booking in
Jail/Potential
for Jail Citation
STATE LAW
• Jail citations are the same thing as cite and release in the field but occur at the point of booking.
• Subject to very same Penal Code requirements as field citations. • The Sheriff ’s Office issues jail citations for misdemeanor arrestees with bail schedule amount of < $15,000, a policy adopted in consultation with local law enforcement agencies in 2017 (Intake and Release Guidelines). • Why might someone be brought to jail rather than cited in the field, but then cited and released at booking?
• Statutory “reason for nonrelease” no longer applies so state law mandates citation, e.g.:
• arrestee no longer intoxicated
• arrestee now agrees to sign citation
• record check shows no outstanding warrants
11 Key criminal justice partners
involved:
• Arresting agency: officer
transports to jail, may
document reason for nonrelease
• Sheriff’s Office Custody Bureau:
booking deputy determines
whether to issue a jail
citation
3. Release
Options
Immediately
After Booking
RELEASE ON BAIL AT JAIL
• California Constitution guarantees right to release on bail for nearly all charges (exceptions are capital offenses, violent felonies, felony sexual assault).
• Superior Court issues annual countywide bail schedule. • Acceptance of bail by jail staff for release after booking:
non-discretionary, solely at pre-scheduled amount.
• Anyone arrested for a serious, violent, or DV offense who is unable to afford scheduled bail is not eligible for release before arraignment.
WHAT ABOUT $0 BAIL?
• These emergency orders were in effect from April 2020 through July 2022, but have now expired.
• At the outset of the pandemic, statewide $0 bail orders were issued to reduce local jail populations.
• Our Superior Court’s $0 bail orders allowed judges to set higher bail in individual cases (including for $0 bail
offenses)
12 Key criminal justice
partners involved:
• Admin Booking: accepts bail
and processes arrestee for
release
• Pretrial Services: gathers info
to help inform judges’
release decisions
• Superior Court: makes
decisions about bail; can
grant release
3. Release
Options
Immediately
After Booking
“MAGISTRATE REVIEW”
• Arresting officer can request “magistrate review” before any release can occur, but only if they have “reasonable cause” to believe scheduled bail amount “is insufficient to ensure the defendant’s appearance or to ensure the
protection of a victim, or family member of a victim, of domestic violence.”
• Per statute, Sheriff ’s Office can hold the person for up to 8 hours for the magistrate’s review, after which it must process a release for the arrestee if they post the
scheduled bail amount.
• Court determines whether to release based on factors
outlined in the Penal Code for bail releases and/or own recognizance releases. In making release decisions, judges weigh the potential risk of flight and risk to public safety against the presumption of liberty.
13 Key criminal justice partners
involved:
• Arresting officer: can request
“magistrate review” at booking
• Admin Booking: accepts bail and
processes arrestee for release
• Pretrial Services: gathers info to
help inform judges’ release
decisions
• Superior Court: makes decisions
about bail; can grant release
3. Release
Options
Immediately
After Booking
Key criminal justice
partners involved:
14 COURT-APPROVED RELEASES:
• Pretrial Services gathers and provides information for the court, including criminal history, other pending charges, history of court appearances, social support system information, and risk assessment tool results • Have a “duty” judge conducting reviews around the clock • Releases for arrestees booked into jail and who don’t post bail can be granted ONLY under authority of the Court
• Own Recognizance (OR) Release And Supervised Own Recognizance Release Program (SORP)
• OR: defendant released without conditions
• SORP: Judge imposes conditions such as electronic monitoring, drug monitoring and testing, restraining order compliance, and service referrals • For misdemeanors, defendant is entitled to OR under the Penal Code unless the court finds their release “will compromise public safety or will not reasonably assure the appearance of the defendant as required” at future court hearings. • Court can add supervision requirement and conditions to the OR release (SORP). • Admin Booking: accepts bail and
processes arrestee for release
• Pretrial Services: gathers info to
help inform judges’ release
decisions
• Superior Court: makes decisions
about bail; can grant release
4. Options
During the
Adjudication
Process
RELEASE WITH NO CHARGES FILED
• District Attorney reviews cases and may elect to file at a reduced or no charge, which could lead to a release or
change in bail amount
RELEASE ON BAIL
• Judges retain discretion to depart upward or downward from the scheduled bail amount while charges are pending.
RELEASE WITH CONDITIONS
• Judges have discretion to later grant OR/ SORP even after initial detention.
DETENTION ORDERS
• Court has ability to order detention if done consistent with the California Constitution and Humphrey decision.
15 Key criminal justice
partners involved:
• Superior Court: makes release and/or
detention decisions
•District Attorney: does not advocate for
bail but seeks release conditions or
detention in cases it deems
appropriate
•Public Defender/criminal defense agencies:
advocate on behalf of defendant,
including seeking reduced bail,
nonmonetary releases
RECENT LEGAL
REQUIREMENTS AND
REFORM EFFORTS
2016
• Bail and Release
Work Group
Reforms Begin
2017
• Judicial Council
Recommendations
• Intake & Release
Policy Revision
2018 - 2021
• Humphrey decisions
and implementation
2020 - 2022
• Emergency Bail
Orders
16 17
FEDERAL CLASS ACTION
CONDITIONS
• County is subject to two consent decrees—
federal court orders requiring compliance
with remedial plans that comprehensively
provide for remediation of constitutional or
statutory violations.
• County must achieve substantial compliance
with each of the 200+ items in the remedial
plans for each case.
FEDERAL CLASS ACTION
CONDITIONS (cont.)
Medical, Mental Health, and Dental Care
Suicide Prevention
Use of Force, Solitary Confinement, and
Disciplinary Practices
Vision, Hearing, Speech, and Cognitive
Disabilities
Chavez Case
Mobility Disability – Structural
Barriers
Mobility Disability – Operational
Barriers
Cole Case
18 Jail Population on August 31, 2022 : 2,963
* Does not include people released on bail or via cite & release 19 3202 3293 3264 3328
2375
2057
2219 2355 2374 2441 2564
2887
0 500
1000
1500
2000
2500
3000
3500
Average Monthly Jail Population*
3695
3583
3434
3353
3280
2408
2373
1574
1406
1323
1552
1960
2675
2622
0 500
1000
1500
2000
2500
3000
3500
4000
2015 2016 2017 2018 2019 2020 2021
Average Justice Involved Population*
In Custody PTS Supported OR/SORP
* Does not include people released on bail or via cite & release 20 20
THANK YOU
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