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Marlon Yarber’s Sweet Spot

aka Probation vs. Public Defender for Pretrial Programs Report

At the 5/10/22 Sacramento County Board of Supervisors meeting, the Probation department and the Public Defender's office presented on their very different Pretrial Programs (Item #43 Pretrial Programs Report).

These programs provide assessment and supervision services to individuals that have been incarcerated and are awaiting trial (thus, still legally innocent). Although District 1 Supervisor Phil Serna and Chief Probation Officer Marlon Yarber want you to believe that if these programs were people then they would be kissing cousins, that depiction couldn’t be further from the truth.

The truth is:

  • 82% of individuals detained in Sacramento County’s jails are pre-trial, which means they have not been convicted of anything

  • 62% of those individuals that are pre-trial have been diagnosed with a mental illness

  • 52% of individuals detained in our county jails are individuals experiencing homelessness

  • 38% of the Sacramento County jail population is Black and 70% people of color

The Probation Department's Pretrial unit was created in 2019 and because it’s housed in the Probation department, it is entrenched in law enforcement as opposed to actual public safety (i.e., people having their needs met).

Anything coming from a department centered around law enforcement is rooted in punishment, which is the opposite of a public health approach.

It conducts assessments on individuals incarcerated in the Sacramento County jail and monitors individuals released to Pretrial by the Court with court reminder telephone calls, office visits, community visits and GPS monitoring. In order to see if an individual qualifies for their Pretrial Program, the Probation department uses the Public Safety Assessment (PSA). This is an assessment that only looks at “Risk Factors” and doesn’t even require a face-to-face interaction with an individual. There is nothing human-centered or holistic about it; in fact, it is dehumanizing. Basically, it sees individuals experiencing incarceration as a “one size fits all” and determines their ability to be released from jail pre-trial based on a weighted algorithm of outcomes whose probability is steeped in systemic and structural racism:

  • Current violent offense and 20 years old or younger

  • Pending charge at the time of the arrest

  • Prior misdemeanor conviction

  • Prior felony conviction

  • Prior conviction (misdemeanor or felony)

  • Prior violent conviction

  • Prior failure to appear in the past 2 years

  • Prior failure to appear older than 2 years

  • Prior sentence to incarceration

The PSA uses the above factors to predict three pretrial outcomes: Failure to Appear (FTA), New Criminal Arrest (NCA), and New Violent Criminal Arrest (NVCA). Chief Probation Yarber was even talking about risk assessment, monitoring, and surveillance as his sweet spot…

Basically, Probation uses the constant threat of reincarceration and sets people up to fail as their Pretrial program. Did I mention that it has a 13% re-arrest rate? This is in contrast to the Public Defender’s Pretrial Program that addresses the root causes of incarceration, whose recidivism rate is only 2%.

The Sacramento County Public Defender’s Office offers a Holistic Defense approach with their Pretrial Support Program.

What’s Holistic Defense? It’s when public defenders work in interdisciplinary teams to address both the immediate case and the underlying life circumstances — such as drug addiction, mental illness, or family or housing instability — that contribute to client contact with the criminal justice system. Holistic defense contrasts with the traditional public defense model that emphasizes criminal representation and courtroom advocacy.

The Harvard Law Review conducted the first large-scale evaluation of the impact of holistic defense on criminal justice outcomes in its report, The Effects of Holistic Defense on Criminal Justice Outcomes. Examining over half a million cases in the Bronx over a 10-year period involving poor criminal defendants who received court-appointed lawyers, it was found that a holistic defense approach reduced the rate of incarceration by 16% and shortened sentence length by 24%. Holistic defense services prevented more than one million days of incarceration, saving New York taxpayers an estimated $165 million.

And despite an appreciably higher release rate, in a follow-up spanning up to ten years after case resolution, defendants who received holistic defense services were shown to commit no more crime than those incarcerated for longer periods.

In fact, Sac County Public Defender’s program received a Merit Award from the State of California in 2020 as one of the most innovative projects in the state and it has an ongoing recidivism rate of only 2%. In 2022, the Public Defender’s Pretrial Support Program assessed 1,806 individuals and linked 462 to mental health services, 243 to substance use and prevention treatment services, and 252 to housing.

Holistic defense reduced incarceration without harming public safety, based on its ongoing recidivism rate of only 2%.. The Public Defender’s Office continues to allocate significant portions of their budget to client services, not just staff time.

Despite being an award-winning program that only costs six cents for every $1 of Probation’s Pretrial Services, the Sacramento County Public Defender’s Program is mostly funded by grants outside of the county’s general fund, with uncertainty on the sustainability of funding. Probation gets its funding for this program largely from the Board of Supervisors with some grant funding sprinkled in.

Despite what Supervisor Serna and Probation Chief Marlon will have you believe, the Public Defender’s Pretrial Support Program is the most humane, safe, and cost-effective solution to pretrial justice reform. Most notably, the presumption of innocence and attorney-client privilege remain intact for the individual participating in the Public Defender’s Pretrial Support program. This privilege encourages the client to be open and honest with his or her attorney without fear that others will be able to pry into those conversations. For example, if someone experiences a simple mistake (like a failed battery in an ankle monitor) and structural barriers (like missing an appointment due to child care or health issues) while participating in the holistic defense program, they are provided with support and services. If someone experiences a relapse under the surveillance of the Probation department, they go back to jail.

The Public Defender’s PreTrial Support Project supports the County’s goals of reducing the jail population, promoting public safety, and addressing racial inequity within the criminal justice system.

By providing early intervention, the Public Defender’s Pretrial Support Program seeks to “identify and implement solutions to eliminate institutional, structural, and systemic racial inequity in all community services provided by the County” as the Board of Supervisors November 16, 2020 Resolution – Declaring Racism a Public Health Crisis – tasks the county to do.

Supervisor Serna must have forgotten that he was the Supe that brought that resolution forward, cuz he has forgotten to put any actions behind that resolution.

Additionally, fully funding the Public Defender's Holistic Defense Programs is aligned with the recommendations made by the Public Health Advisory Board for alternatives to incarceration (if you haven’t read that write-up just yet, make sure you do so to see how these fit together).

When this Board discussed the ordinance to ban the sale of flavored tobacco products in this county a few months ago, it was expressed by every board member how important they consider the public health of this county’s residents. Those individuals detained in our County’s jails are residents also, where two years from their life expectancy is reduced for every one year of experiencing incarceration. Effective pretrial reform that addresses root causes of incarceration must be a huge priority. If this county is serious about reducing the jail population, as is mandated by the Mays Consent decree, it needs to fully fund the Public Defender’s Pretrial program.

PS Can we just say how much we freakin’ LOVE seeing Decarcerate Sac represent at the Board of Supes??? Mad love y’all.

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Jun 03, 2022

great article, so what can be done? The BoS does exactly what it wants so I'm not sure how we can convince them to use the PD Pretrial Support program. It's a shame because once probation gets involved a lot of pre-trial participants won't have a place to live because the folks they live with don't want probation coming around flashing their badges, it's not exactly something most people want happening at their house and after awhile all the neighbors are standing outside watching.. /sigh

SJPC editor
SJPC editor
Jun 06, 2022
Replying to

Hello, thank you for reaching out! It can be very challenging to figure out how to push back against institutions with so much power! We need to make sure we're constantly applying public pressure to the BOS to do better - a way to accomplish that goal would be by making verbal/virtual comment at meetings. You may also want to try and get involved with Decarcerate Sacramento, a group fighting to "...shift county funds away from policing and incarceration towards community-based systems..." (drawn from their website One of their current campaigns is centered around fighting against the expanding power of Probation in pre-trial systems.

SJPC will also be hosting a Facebook Live event (we call them "Chit-Chats") in the…

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