The Hidden Power of Probation: Here’s What Happens When the Bus Doesn’t Show!
In the first post, we touched on Sacramento County’s high incarceration rate and linked it to the wide net of surveillance cast by probation. Probation significantly contributes to mass incarceration for specific local communities and it prevents people from being free. Here is Mr. Clark’s story...
Sacramento County continues to lock people up for missing meetings and for substance misuse instead of providing support and enhancing treatment options. A 2013 study of four California counties: Los Angeles, Redlands, Sacramento, and San Francisco, found that Sacramento had the highest rates of probationers rearrested at 30% while also consistently having the largest number of adults on probation per 100k residents. Sacramento could be restoring and rehabilitating more people, but it’s not. In short, probation has become a pipeline for human caging, wasting vast amounts of human potential and taxpayer money.
Probation Hinders, Not Heals
Reducing the number of people on probation improves public safety and reduces costs to the state and counties. Evidence shows that reducing probation terms lowers recidivism, improves outcomes for people who have been impacted by the criminal legal system, and ultimately restores individuals so they can contribute to their families and communities economically and socially.
The effects of probation are especially profound for youth. A study from the Council of State Governments found that youth on probation missed 23 percent of their school days compared to their peers diverted from the criminal legal system who missed 14 percent of school. Probation is a law enforcement function primarily focused on monitoring and compliance. Probation officers shouldn’t be expected to have the expertise to “accurately identify the complex set of individualized reasons that particular youth do not attend school, assess their specialized learning needs, and connect them (and their families) with appropriate services and supports.”
The number of probation conditions imposed varies dramatically by person and by county. There are an average of 15 separate conditions imposed for a probation term, such as reporting in person and/or electronically, being home within specific hours, staying drug or alcohol free, and/or attending counselling sessions. A violation of any one of these conditions can land someone back in a cage. The more conditions there are, the more risk there is of a technical violation. These conditions also make it difficult for a person on probation to get a job, keep that job, find housing, and stay connected with family. For many people with electronic monitoring ankle shackles, they may have to clock out in the middle of each work day to charge their GPS monitor, further limiting their employment options. Probation conditions can also hamper a person's ability to visit family or travel outside their county for many years after incarceration.
According to the Sacramento DA’s own website, the county saved $6,000 per client when they went through an alternative treatment option such as mental health court by avoiding the high cost of detaining and treating people inside the jail system. Re-caging someone because they failed to show up for a meeting is ineffective and costly.
There is increasing evidence that most (7 out of 10) re-arrests take place within the first year of probation. People “who were on probation for at least a year without being rearrested could have served shorter terms without impacting recidivism rates.” This and many other studies underscore the fact that counties can reduce the length of probation, help people get back on their feet, reduce punitive measures, save taxpayer dollars, AND promote public safety.
Celebration and Victory after Signing AB1950
In recent years, community experts, activists, and California state lawmakers have been pushing for and passing reforms to reduce incarceration and end patterns of discriminatory punishment. Reducing the length of probation is one such reform.
During the 2020 legislative session, then-Assemblymember Sydney Kamlager authored Assembly Bill (AB) 1950: Probation: length of terms. This bill was designed to reduce the length of probation for most crimes. Broadly speaking, it reduced felony probation from 5 years to 2 years and reduced misdemeanor probation from 3 years to 1 year. Below we will discuss some of the special circumstances of the bill.
As part of this reform effort, California received significant nationwide support for the passage of AB1950 including from major national advocacy organizations and superstars. There was much-deserved celebration and joy at the passage of the bill. Local, state, and national advocates, now-Senator Sydney Kamlager, other legislators, and Gov. Newsom all deserve credit for passing this vital legislation.
AB1950 was considered one of the first major legislative victories for the REFORM Alliance--a national organization founded and supported by Jay-Z, Meek Mill, and Michael Rubin as well as some NFL team owners. As a result, the bill and California received national press coverage from Fox News, Billboard, Atlanta Black Star, and The Hill. Van Jones, Meek Mill, Gov. Newsom, and many others issued statements supporting the bill and touting its potential to reshape our system.
AB1950 was supposed to help transform probation--and by extension our system of caging--in California. It would also affect the future of those yet to be sentenced. However, like any legislation, AB1950 had to be interpreted by counties and judges.
Bring in the lawyers
Many, but not all, counties and judges across the state relied on and continue to rely on the interpretation of Judge Couzens--a retired district judge whose legal opinions are given significant weight in the California legal community. In a memo he wrote on November 9, 2020, he argued:
The law applies retroactively, meaning that all people currently on probation are eligible for reduction, even if their conviction and sentencing took place before the law passed.
The law also applies to people who were on trial or awaiting sentencing when the law passed.
AB1950 is implemented “by operation of law,” meaning that a person on probation shouldn’t have to file any legal document to be granted their right under the law.
If a person violated probation during their original period of probation, or any extension of probation, that person could receive further extension of probation. Such violations could include not paying restitution.
While Judge Couzens’ memo is well researched and his opinions widely regarded by lawyers and judges in California, ultimately it is up to district courts and county counsels (with varying degrees of input from the DA and defense bars) to decide how to interpret and implement AB1950. How these people interpret the law determines how many people get relief under AB1950. People on probation, despite the new state law, are at the mercy of local government decision-makers--Probation, the DA, and the county Superior Courts.
We’re eager to share the dysfunction and “default injustice” of Sacramento County’s AB1950 process that punishes Black and brown and low-income communities. Later, we’ll also touch on potentially large-scale financial mismanagement directly tied to Probation’s inability to remove people off probation as the AB 1950 law mandates.