ACLU Reports: Racist, Unjust District Attorney Policies in Orange, Riverside Counties

District attorneys wield enormous power in the criminal justice system. They decide whether to bring charges, what charges to bring, and whether or not a juvenile is to be tried as an adult. In recent years there has been a rise of progressive DAs, but in Orange and Riverside Counties, outmoded DA policies and practices have contributed to skyrocketing incarceration rates, vast racial disparities in charging, and the criminalization of mental illness and poverty.

Today, the ACLU Foundations of Northern and Southern California release comprehensive reports on Orange County DA Todd Spitzer and Riverside County DA Michael Hestrin. Both of these officials oversee offices that spend immense amounts of time and resources prosecuting low-level offenses. The volume makes their prosecution balance sheets look good, but these type of offenses pose little or no threat to community safety and may actually worsen long-term outcomes.

“The policy changes recommended within these reports prioritize community-focused alternatives to incarceration,” said Summer Lacey, criminal justice director at the ACLU SoCal. “They have been proven to reduce the likelihood that individuals will have future contact with the criminal legal system. The recommendations represent necessary steps that DA Spitzer and DA Hestrin must take to redress glaring inequities against people of color.”

The reports were derived from vast amounts of data, but getting the information was problematic in some cases. The Orange County DA’s office only agreed to turn over charging data from when Spitzer’s predecessor, Tony Rackauckas, was in office. However, available evidence suggests that charging and other practices have not substantially changed under Spitzer's watch.

Among the issues taken up by the reports were:

• Low-level offenses — Of the more than 259,000 charges made by the Orange County DAs office in 2017 and 2018, nearly 64% were the type of low-level offenses that should have been either considered decline-to-charge or diverted to community based programs, including those for addiction and mental illness. In Riverside County, for which about 456,000 records from 2017 to 2020 were examined, about 57% should have been decline-to-charge or diverted. These treatments of low-level offenses would not only relieve overcrowded jails, they have also shown to be effective in curbing recidivism.

Gaby Hernandez, an organizer with Chicanxs Unidxs that focuses on ending the criminalization of Latinx community members, is quoted in the Orange County report as saying the DA should serve the public by “changing the culture in that department where conviction is not our goal. Understanding that incarceration does not make communities safer … when you link people to supportive services or actual transformational services, you’re going to see a reduction in crime.”

• Race — Census figures show that 2.1% of people in Orange County are Black, but 5.8% of people criminally charged in 2018 in the county were Black. In Riverside County, 7.3% of the overall population is Black, but 13.9% of adults charged by the DA between 2017-2020 were Black.

The Orange County report says, “Activists and academics have likened the current Prison Industrial Complex to a racial caste system and highlighted the ways in which ‘tough on crime’ policies exert social control over predominantly low-income communities of color.”

Among the key recommendations of the Riverside Report report is to, “Commit to blind charging, which prevents prosecutors from seeing demographic information before making an initial decision whether to charge someone with a crime.”

• Youth Charges and Imprisonment — In Orange County, children are transferred to adult court at more than twice the statewide rate, even though, as the report states, “Decades of research has found no evidence of any deterrent effect of transferring minors into the criminal (adult) legal system.”

Riverside County imprisons youth at a rate 2.5 times the state average, according to a 2017 study. And there was wide race disparity in the numbers of youths tried as adults. According to 2016 statistics, Latinx youth were prosecuted in adult courts at 8.6 times white counterparts, and Black youth were prosecuted in adult courts at 4.3 times white counterparts.

The reports take up several other topics including how DAs handle “wobbler” offenses that can be charged as misdemeanors or felonies; the oppression of sentence enhancements; and the extremely rare prosecution of law enforcement officers, even when the counties pay multi-million dollar settlements due to officers’ actions.

— The full Orange County report can be accessed here: https://www.aclusocal.org/sites/default/files/ocda-report-022822.pdf

— A summary of the OC report is here: https://www.aclusocal.org/sites/default/files/ocda-report-summary-022822.pdf

— The full Riverside County report can be accessed here: https://www.aclusocal.org/sites/default/files/rda-report-022822.pdf

— A summary of the Riverside report is here: https://www.aclusocal.org/sites/default/files/rda-report-summary-022822.pdf