SF District Attorney

An Epidemic Inside a Pandemic

Authored By Dylan Yep, Tara Anderson, and Todd Faulkenberry

Edited By Rachel Marshall and Robyn Burke

November 30, 2020

An Introduction by District Attorney Chesa Boudin

The criminal legal system is failing to uphold the values it claims to promote. Instead of justice, our system is plagued by mass incarceration and staggering systemwide racial disparities. A focus on punishment has caused our jails and prisons to churn out people who are traumatized, disconnected from community support, less employable, and who often end up back in custody. This system fails to address the complex truth that people who engage in harm and those who are harmed often come from the same communities where structural racism and violence are pervasive. As a result, the system does not serve victim/survivors and increases the harm to our broader community. The system doesn’t just need reform – it needs re-building. At the center of the system sits one of its most powerful decision-makers: the prosecutor’s office.

The San Francisco District Attorney’s Office (SFDA) believes it is time to radically change prosecutorial practices, rejecting the notion that to be free and safe we must cage others; rejecting the notion that redemption and accountability require practices that push defendants and victims/ survivors further into poverty. We must work with local leaders and community members to ensure we are building an effective, humane criminal legal system that acknowledges the dignity in all people and values public health and accountability over punishment and retribution. As powerful decision makers sitting at the nexus of enforcement, accountability, and healing, prosecutors have a unique opportunity to drive solutions. We have a responsibility to share our own experience as we work to transform the system.

Justice Driven Data is a series of issue briefs created by SFDA to disseminate firsthand, practitioner experience focused on enhancing the field of prosecutorial reform. There are few publications that provide prosecutors’ perspectives and experiences implementing reform. This publication aims to share practitioner perspective on the use of data to drive decision-making, to implement reform, and measure results. Justice Driven Data publications are focused on real time actions led by prosecutors in the pursuit of justice. This is a practitioner journal focused on modeling the use of data to inform change-making, promote transparency, and hold ourselves and the system accountable.

Justice Driven Data and COVID-19

Less than three months into my first term in office, we were faced with a global crisis. Public health officials warned us that our city’s jails were too crowded to allow for social distancing— an imminent threat to public safety. Faced with uncertainty amidst an unprecedented emergency, we focused on our principles: we turned to data, empirical evidence, experts, and our commitment to public safety for all to guide us. We aggressively implemented a broad array of policies to rapidly reduce our jail population and close a jail without jeopardizing public safety.

The purpose of this paper is to share the strategies we used to safely and rapidly decarcerate and to contextualize our work within our broader goals of public safety, reducing racial inequities, and data-driven justice.

As COVID-19 cases continue to surge across the country, we believe it is our duty to share this work to promote transparency and support other jurisdictions in taking the critical measures needed to reduce their jail populations and prevent avoidable deaths

-Chesa Boudin

The Impact of COVID-19 on San Francisco and Its Jail Population

This section is based on a presentation given to the managing attorneys of our office on July 24, 2020. We created it to provide up to date, accurate information about the prevalence of COVID-19 in the City and County of San Francisco with an emphasis on the most impacted and vulnerable populations. The presentation’s purpose was to guide office strategy, prosecutorial decision making, and the provision of services to victims and survivors.

Unprecedented

On March 17, 2020, Mayor Breed issued a Shelter-In-Place (SIP) order in response to the community spread of COVID-19. Shortly after the SIP was instituted, the number of San Francisco Police Department (SFPD) incident reports for thefts, robberies, and assaults sharply dropped to levels not seen since SFPD began systemically collecting data in 2003. March through October would mark the fewest monthly arrests presented to our office since we began systematically collecting data in 2011.

Source: San Francisco District Attorney’s Office

On the day SIP was announced, the jail population was nearly 1,100. On March 24th, Dr. Lisa Pratt, the Director of Jail Health Services, called for a reduction of the jail population to 700-800 to allow for the social distancing needed to protect those who were incarcerated, San Francisco jail staff members, and the broader community.

Over the next few weeks, our office engaged in a comprehensive analysis of the entire jail population, prioritizing the release of the most vulnerable people, and enacting policies to safely reduce the use of incarceration. This included:

  • Reviewing every single case involving someone in custody and identifying opportunities for alternatives to incarceration. For example, we identified a woman with a high-risk pregnancy, no criminal record, and who was in jail on a misdemeanor. With our reentry partners, we were able to get her community based prenatal care and housing.
  • Leveraging the multi-disciplinary collaborative work established as a part of the MacArthur Foundation funded Safety and Justice Challenge initiative to safely reduce the jail population.
  • Adhering to our office policy to consider pretrial detention only in felony cases when the facts are evident and clear and convincing evidence shows a substantial likelihood that the defendant’s release would result in flight or great bodily harm to others.
  • Affirmatively seeking to reduce remaining time on sentences and/or immediately releasing individuals in custody with less than 60 days remaining on their sentence.
  • Identifying cases where probation or mandatory supervision sentences were suitable and offering plea bargain terms that included immediate release when appropriate.
  • Coordinating with defense attorneys to identify individuals in custody who were eligible for Department of Public Health temporary housing or other reentry supports.
  • Releasing, pending trial, those in jail charged with misdemeanors and non-violent felonies.
  • Identifying individuals suffering from mental illness and expediting their connection to community-based treatment.
  • Working with the court and probation department to expedite scheduled release for incarcerated people with solid reentry plans.
  • Avoiding detaining people for technical violations such as missed appointments with probation officers.
  • Ensuring compliance with the emergency relief measures and rules issued by the California Judicial Council.

Additionally, we reviewed our charging strategies – ensuring that our lawyers follow office policies like declining to file contraband crimes stemming from pretextual searches or not filing charges that criminalize poverty or mental illness. We also worked to delay filing charges when we could safely do so without compromising public safety. As a result of these delayed filings, April marked our lowest filing rate on record at 36%.

Deliberate policy choices and collaboration with other criminal justice agencies enabled us to help reduce the jail population to the numbers Dr. Pratt recommended. On April 24, the jail population dropped to 699, its lowest point in recent history.

As the jail population declined, both property and violent crime rates remained well below their historical average, contradicting critics who warned of a spike in crime if our city were to rapidly decarcerate in response to COVID-19.

The exception here was residential and commercial burglaries. There was a spike in May that was largely driven by two nights of unrest and aggressive enforcement during the protests over the murder of George Floyd. Since then, burglary[1]The SFPD definition of burglary only includes residential and commercial burglaries, which is a more narrow definition of burglary than what is found in the penal code. For example, SFPD categorizes an auto burglary (Penal Code § 459) as “Larceny Theft.” rates have fallen, but they remain about 50% higher than in 2018 and 2019. This is likely a reflection of the circumstantial nature of crime and crime rates. Crimes of opportunity dependent on people being on the streets or businesses being open—like robbery and larceny theft—have declined by historic margins. Some of that crime, however, has been displaced into incidents like residential and commercial burglaries. Overall, since SIP began, reported crime in San Francisco is down over 33 percent.

By taking intentional and aggressive measures to decarcerate, San Francisco safely and efficiently lowered the jail population, avoiding the catastrophic outbreaks of COVID-19 that were occurring in other jails, prisons, and communities nationwide. These measures were so effective that, in September, San Francisco was able to expedite the closure of County Jail 4, a facility known to be unsanitary and seismically unsafe.

But the story’s not over.

Our city is attempting to reopen. The number of new daily COVID-19 cases is spiking.

As criminal legal system stakeholders in San Francisco have adjusted to life during COVID-19, we have collectively deprioritized reducing the jail population. This is reflected in a rising jail population that, through October, fluctuated in the high 700s, occasionally broaching 800 – a benchmark that, according to Dr. Pratt, “does not provide an opportunity to create distance between people in cells and mitigate the spread of infection.”

On July 22, after the jail population had risen to 776, the Sheriff noted that approximately 90 people in the jail had been exposed to COVID-19 by a single transport deputy who tested positive. This resulted in at least one incarcerated person and one jail medical staff member contracting COVID-19.

A positive COVID-19 test for a person in the custody of the Sheriff ’s Department or members of in-custody staff has cascading effects, impacting district attorneys, defense counsel, judges, clerks, deputies, jurors, and more.

As a result of the increase in average daily jail population combined with the increase in positive cases, there will likely be continuances and delays in criminal case processing as more individuals fall ill and new restrictions are implemented. Reports from hardship questionnaires for jurors in the few post-SIP trials indicate that 70 percent of potential jurors declared that they felt unsafe engaging in jury duty during the pandemic.

A New Target

On the morning of October 14th, San Francisco criminal justice partners received an email from Dr. Pratt. Due to the closure of County Jail 4, the end of the emergency bail schedule issued by the California judicial council, and transfers from other county jails and state prisons, which had previously been halted, Dr. Pratt set a new target jail population of 600 to ensure the safety of incarcerated people, jail staff, and the community at large. She again made the explicit ask for aggressive strategies to reduce the jail population.

On the date of this announcement, the jail population was 835.

Source: San Francisco Sheriff’s Department

Jails are not closed systems

 We are in the middle of a public health crisis not just in our jail system, but in our entire city. A study by ACLU Analytics in collaboration with the University of Pennsylvania, University of Tennessee, and Washington State University demonstrates the impact of COVID-19 prevention efforts in jail

on the broader community. The study looked at the projected increase in deaths in the broader community when mitigation efforts in jails are not conducted. This graphic shows the range of these projections, which span from a 13% increase in community deaths in New York City to a 232% increase in San Bernardino:

Source: https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/01/how-covid-19-in-jails-and-prisons-threatens-nearby-communities

The message is clear: Inaction will cause the deaths of people both inside and outside our jails. To see how quickly an outbreak can occur and how dangerous it can be for incarcerated people, staff, and the surrounding community, we can look to the catastrophe that occurred in and around San Quentin State Prison, just miles north of our office.

Timeline of the San Quentin Outbreak

Over the course of weeks, San Quentin went from a COVID-19-free environment to the second largest hotspot in the country. Due to insufficient contact tracing, we will likely never know the true impact this outbreak has on the surrounding community. Examining the timeline of the outbreak illustrates the potential for explosive growth in infections amongst incarcerated communities when preventative mitigation efforts are not taken.

Source: https://www.cdcr.ca.gov/covid19/population-status-tracking/

March 16: The California Department of Corrections and Rehabilitation (CDCR) postpones all family visits to prevent the spread of COVID-19.

May 27: San Quentin still has no known cases of COVID-19.

May 28-29: California Institution for Men (CIM) – a COVID-19 hotspot – transfers 121 medically vulnerable incarcerated people from CIM to San Quentin. None are tested for COVID-19 before being transferred and they are not quarantined. At least twenty of those people would later test positive.

May 31: San Quentin reports its first case of COVID-19.

June 14: The number of active COVID-19 infections at San Quentin has risen to 49.

June 29: The number of active COVID-19 infections at San Quentin is 1,491. The infection rate is 42% — approximately 111x higher than the state infection rate.

July 13: The COVID-19 infection rate at San Quentin is 54%. Approximately 1,923 San Quentin residents and 205 staff members have been infected. Ten residents of San Quentin have died.

July 20: The infection rate stands at 59%. Three additional residents of San Quentin are now dead.

November 18: the outbreak has largely passed. There are 3 remaining cases in custody.

Approximately 2,214 incarcerated people and 289 staff members have been infected. Twenty-eight residents of San Quentin have died and we are only beginning to understand the psychological impacts of COVID-19 outbreaks on incarcerated people and prison staff.

Infections and Deaths: Latinx and Black Communities Disproportionally Affected

As we’ve witnessed at San Quentin, a COVID-19 outbreak in a congregate setting will disproportionately infect and kill the people living and working in that setting. Although our city’s population is 5% Black and 40% white, the jail population is approximately 48% Black and 40% white. Thus, we know that an outbreak will disproportionately infect and kill Black people, particularly Black men, a category which represents 44% of the jail population.

Once this outbreak spreads to the broader community, it will again disproportionately infect and kill people of color. As we’ve seen across the country, COVID-19 outcomes are strongly correlated with wealth including factors like access to affordable healthcare and the privilege to work from home.

These disparities were exemplified by a study in late April in which nearly 3,000 people living in a several square block area in the Mission District were tested for COVID-19. People were encouraged to get tested regardless of whether they were exhibiting symptoms. 44% of people tested identified as Hispanic or Latinx and 38% of people identified as white. Of the people who tested positive, 95% were Hispanic or Latinx and zero were white. Of those who tested positive, 90% could not work from home and 89% made less than $50,000 a year.

Source: https://www.ucsf.edu/news/2020/05/417356/initial-results-mission-district-covid-19-testing-announced

Conclusion

 The San Francisco District Attorney’s Office seeks to reduce the racial disparities that play out not just through COVID-19, but throughout the criminal legal system. On June 26, amidst protests over George Floyd’s murder, an overwhelming majority of our staff chose to join District Attorney Boudin in taking an equity pledge to promote racial justice. The statement explicitly acknowledged, “systemic discrimination manifested in inequitable social, environmental, economic and criminal justice policies, practices, and investments.” The pledge recognizes the role of government in creating and exacerbating the deep disparities throughout San Francisco’s criminal legal system. This same legacy has set the stage for the disparities in COVID-19 community spread and deaths reflected in the analysis above.

Our office makes extremely difficult decisions every day in fulfilling our duty to uphold the Constitution. In the name of public safety, those decisions destabilize some of our most marginalized residents, separate parents from their children, and deprive people of their civil liberties.

We are facing unprecedented circumstances that force us to grapple with a new set of difficult decisions. If the “public” in “public safety” includes our most marginalized communities, then we must think deeply and creatively to identify ways to safely reduce the jail population and recommit ourselves to the policies that allowed us to rapidly decarcerate. Otherwise, we are resigned to reinforce the very racial inequities we just pledged to eradicate.

The data from March through October show that it is possible to safely reduce the jail population without causing a spike in crime. The crisis at San Quentin and the words of the Director of Jail Health Services, Dr. Pratt, have made it clear that we must take aggressive measures to mitigate the spread of COVID-19. We must act with urgency to ensure that detention is used only when the risk of great bodily harm to another person outweighs the community public health consequences. Public health and public safety depend on it.

Policy Appendix

For a more complete list of office policies, visit our policy bank.

References

References
1 The SFPD definition of burglary only includes residential and commercial burglaries, which is a more narrow definition of burglary than what is found in the penal code. For example, SFPD categorizes an auto burglary (Penal Code § 459) as “Larceny Theft.”