Warning: No goals for $75M worth of pretrial reviews

SACRAMENTO — California is poised to spend $75 million on pretrial assessment pilot projects without a clearly defined set of goals, the state Legislative Analyst’s Office warned Monday.

“While it is certainly possible the proposed program could be worthwhile, we do have some concerns that the lack of detail makes it very difficult for the Legislature to effectively evaluate it,” said Anita Lee, principal fiscal and policy analyst with the analyst’s office, speaking at an Assembly budget subcommittee hearing on the state judiciary budget. “It is not an insignificant amount of money.”

The analyst’s report identified four elements missing from Gov. Gavin Newsom’s proposal: clear goals, a definition of what kinds of projects are eligible, and methods for allocating funding and evaluating different programs.

The agency’s report recommended the governor’s office, the Legislature and the Judicial Council meet to determine these issues before any projects are funded. Among the more pressing goals is coming up with a way different pilot projects could be compared with each other.

Lee said the analyst’s office was asking these stakeholders to come up with a more comprehensive plan for the spending by April 15, ahead of another set of budget hearings. If they are not able to answer the concerns raised about the plan, she added they would recommend the Legislature reject the spending.

The confusion around the pilot project mirrors the uncertainty about the future of bail in California. Last fall, Gov. Jerry Brown signed SB 10, a bill that phases out cash bail in the state. When he introduced his first budget in January, Newsom included the $75 million to fund to 10 trial projects in courts to help figure out a pretrial risk assessment system to replace bail.

Just one week later, Secretary of State Alex Padilla announced a bail industry-backed referendum to overturn SB 10 had qualified for the ballot, putting the new law on hold at least until the November 2020 election.

Meanwhile, three cases challenging aspects of the bail system are pending before the California Supreme Court. Earlier this month a federal judge declared San Francisco’s bail system unconstitutional, but declined to enjoin it. Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

“These decisions have the ability to change how pretrial is administered overnight,” Aaron Johnson, director of pretrial services for Santa Clara County, testified at the budget hearing.

The intent of the pilot project is to come up with a system where information about particular arrestees could be used to determine whether they are a flight risk or are likely to commit more crimes when released. The ACLU and other groups have raised concerns that pretrial assessment tools could end up being as discriminatory toward minorities and low-income people as they say the current bail system is.

Shelley Curran, director of criminal justice services with the Judicial Council, said such bias might already be happening. “Pretrial assessment tools are being used throughout California right now,” Curran said. “Very few of these tools have been evaluated.”

The abalyst’s office regularly raises issues with budget line items during such hearings. In many cases, legislative committees ignore these warnings and fund the projects anyway. In this case, however, the subcommittee included its own, even stronger warning in the agenda.

“The implementation of SB 10 was assessed in the ‘low hundreds of millions of dollars,’ making this pilot critical in helping to determine how best to direct future resources to implement the law,” the budget staff report noted.

Newsom’s plan, as drafted, would provide grants only to county probation departments. The subcommittee staff report recommended opening up eligibility to sheriffs, outside agencies and others. It also asked the Legislature to offer clarity about how data will be gathered on the pilots and whether or not the ultimate goal was to have every county in the state use the same risk assessment tool.