Polarizing pandemic-era policies aimed to help depopulate the jails are expiring at the end of July—but the debate over their effectiveness is still alive.
The state enacted a zero bail policy and citation and release orders near the start of the pandemic to limit the spread of COVID-19 in jails. Zero bail allows low-level offenders to be released while waiting for their court dates. Citation and release orders allow law enforcement to issue citations for nonviolent crimes instead of arrests. Nearly a third of Santa Clara County’s jail population has been released since the pandemic began— the majority being individuals awaiting trial.
The Santa Clara County Superior Court ruled last week to let the policies expire after renewing them multiple times over the past two years.
San Jose Mayor Sam Liccardo claims the policies have led to increased crime on San Jose streets and created a revolving door of repeat criminals getting arrested several times without consequences. The victims of that revolving door are small businesses and residents, he said. But county crime data doesn’t appear to support the mayor’s claims and social justice advocates say there is no connection between the policies and violent crime.
“They arrest somebody, they take them in. They wait two or three hours through the booking process. An individual may get released within minutes or hours and they’re right back on the street,” Liccardo said. “Small business owners have perhaps the most direct experience with ongoing challenges with crimes in our city.”
From January 2020 to May 2022, 43 individuals were arrested and brought to jail 10 or more times, 103 people were arrested or cited by the San Jose Police Department 10 or more times and 887 people were cited or arrested more than five times during that period, according to Liccardo.
He partly attributes those rearrests to rises in violent crime. Rape, robbery, homicide and aggravated assault went up 10.4% from 2020 to 2021, according to SJPD data.
“The data shows that a few hundred offenders commit an enormous share of crime, often without any period of detention that would have otherwise interrupted or at least slowed their pattern of rampant criminal activity,” Liccardo said.
However, advocates and public defenders say there is no correlation between those released from jail awaiting trial and an increase in violent crime, so tying this data to jail release policies is misleading. Even before the pandemic-era policies, about 5% to 7.5% of pretrial clients were rearrested each month for new crimes and/or technical violations, according to county data.
“They’re trying to conflate these policies with a rise in serious crime,” Assistant Public Defender Charles Hendrickson told San José Spotlight. “I think that’s scapegoating because the people we’re talking about are overwhelmingly people who are being charged with fairly minor offenses, not violent crime.”
Hendrickson said many of those rearrested are likely homeless or mentally ill individuals who historically have multiple run ins with law enforcement.
He pointed to SJPD data that shows the crimes people are typically released without bail for—like burglary, trespassing and vehicle theft—went down about 7% from 2020 to 2021. Overall violent and nonviolent crimes decreased 4% during that same time period.
Hendrickson said the expiration of these policies just means more people awaiting trial are going to sit in jail —which will affect poor people who cannot afford to post bail.
“You’re basically saying the alternative is to incarcerate those people,” Hendrickson said. “Those are people who are presumably innocent until proven guilty. But they are spending sometimes up to five days in jail waiting for arraignment and that can impact employment, housing and families. Those who can afford bail do not have the same consequences.”
The Santa Clara County District Attorney’s Office said this is the “right time” for judges to rethink the pandemic-era policies.
“With vaccines and effective treatments, we’re in a different COVID phase now than before,” Assistant District Attorney James Gibbons-Shapiro told San José Spotlight. “District Attorney Jeff Rosen’s main concern—regardless of the existence of a pandemic—is always public safety. The DA’s Office is far more amenable to custodial alternatives when the crime is nonviolent. Violent offenders belong in custody.”
Raj Jayadev, founder of Silicon Valley De-Bug, said zero-dollar bail and citation and release orders are examples of alternatives for nonviolent crime.
“Arresting and incarceration doesn’t make those people vanish forever. It doesn’t deal with whatever underlying issues may have caused concern to begin with,” Jayadev told San Jose Spotlight. “If they want these problems to go away, they should invest in real solutions. We need economic opportunities. We need stabilizing support like housing and social services. We need mental health support, not incarceration.”
Contact Jana Kadah at [email protected] or @Jana_Kadah on Twitter.