Santa Clara County has witnessed a dramatic increase in the number of people under pretrial supervision in recent years—a trend sparked by COVID-19 and likely to continue after the pandemic has ended.
Between early 2019 and 2020, the population of people under pretrial supervision in the county doubled, according to a report from the Office of Pretrial Services. Courts have the discretion to release or divert people from jail on their own recognizance, which means they are responsible for showing up to future court hearings. Courts can also release people under supervision.
This might entail defendants taking regular drug tests or attending mandatory counseling. On the more extreme end, defendants may come under stricter monitoring, such as GPS surveillance, home detention and ankle monitors.
At the end of last year, about 2,950 residents were on some form of pretrial supervision—roughly triple the numbers seen a decade ago. The court’s use of electronic monitoring—including GPS and various forms of alcohol monitoring—has quadrupled over the last four years. In 2018, Santa Clara County judges issued 254 orders for electronic monitoring; in 2021 they’ve issued 946.
“Every judge reviewing a case for release is required to give individualized consideration to the person appearing before them, and to consider whether non-monetary conditions of release are sufficient to protect both the alleged victim and the public, and to ensure the defendant’s appearance in court,” Criminal Supervising Judge Eric Geffon said in a statement to San José Spotlight. “Supervised release with conditions, including electronic monitoring, is a significant tool in that regard.”
The explosion in pretrial supervision comes when Santa Clara County is witnessing a drastic decrease in its jail population, thanks to restrictions caused by the COVID-19 pandemic and a statewide attempt to move away from cash bail. Earlier this year, the county reported just over 2,000 inmates—down more than half from the 2014 peak of 4,386 people.
Some criminal justice advocates say surveilling people on pretrial supervision is detrimental and unnecessary—and the new scale of its use is cause for alarm.
“You are still limiting someone’s life who hasn’t been convicted of a crime, just in a way that’s not as obvious and clear as a jail cell,” said Raj Jayadev, founder of Silicon Valley De-Bug.
Matthew Fisk, director of the Santa Clara County Office of Pretrial Services, told San José Spotlight his office witnessed a significant spike in case load during the pandemic. The office connects people with county agencies to help them find housing, mental health assistance, drug counseling and more.
To avoid COVID outbreaks in the county jails, judges ordered more defendants released on supervision. But the pandemic also forced the court to reduce the capacity of courtrooms and continue hearing dates. Fisk said the average duration of supervision varies widely, but the amount of time generally grew longer during the pandemic.
That said, he believes the pandemic jumpstarted some changes that kept people out of jail, and will continue to do so in the future.
“The pandemic showed us there were a lot of things we could do that many people thought we couldn’t do for many years,” Fisk said. As examples, he said his office enhanced its case management system and improved an app that sends people reminders about court dates and other court-ordered obligations.
Fisk acknowledges some people see electronic monitoring as an extension of incarceration. But he views it as an opportunity for his office to connect people with support services, such as temporary housing and rehabilitation programs.
“We have these people under supervision, but at the same time we’re supporting all these people out of jail,” Fisk said. “And many of them, frankly, wouldn’t be out of jail if not for this.”
Sajid Khan, a longtime public defender in Santa Clara County and candidate for district attorney, told San José Spotlight he has some concerns about strict forms of supervision, such as electronic monitoring and home detention. But he doesn’t object to some of the conditions used for supervised release, such as ensuring people have access to vocational training or domestic violence intervention programs.
“When we offer those programs, we are actually utilizing this very critical pretrial time to get to the root cause of crime,” Khan said. “It addresses people’s basic needs and dignities, and hopefully it leaves them and their families better off, making our communities safer downstream.”
A new frontier
Fisk sees pretrial services as complementary to the work done by Silicon Valley De-Bug. Over the last few years, De-Bug has helped defendants through its voluntary program known as the Community Release Project. The program works to get people access to housing, transportation and reminders about court dates, among other things.
Fisk said De-Bug is especially effective at providing public defenders and the court with voucher letters from employers and landlords, plus weekly peer support meetings.
“I’m sure it’s a real morale booster to be with other people in similar circumstances in a supportive environment that’s not the government,” Fisk said.
Jayadev told San José Spotlight that government supervision will always come with strings attached. As an example, he pointed out that a Santa Clara County task force explored the possibility of funding a program similar to the Community Release Project several years ago. But it wanted the program to report to the county whenever someone failed to meet court-imposed conditions, and ultimately the program didn’t materialize.
“No community organization is going to engender any trust if they’re just reporting on people all the time,” Jayadev said.
Fisk noted that historically, few individuals violate the terms of supervised release. According to the Office of Pretrial Services, roughly 5-7.5% of pretrial clients are re-arrested each month. Fisk said about 95% of all clients are not re-arrested for new crimes or have their freedom revoked for technical violations. And more than two-thirds of clients attend every scheduled court appearance.
Ultimately, the decision on whether to continue supervisions or entrust defendants to community groups rests with judges, who are still exploring available options.
“This is definitely a new frontier,” Khan said. “I think it will be a two-way effort, where the courts become more open to these possibilities, while these community organizations—through investment from the county—become better equipped to handle an expanding case load. It will be a meeting in the middle.”