Editorial: Probation until proved guilty? That's not how it's supposed to work

“Innocent until proved guilty” is an essential creed in the American system of justice, but the concept predates the Constitution by centuries. It’s that basic to notions of fair play: People shouldn’t be punished unless and until they are convicted.

Yet our system does tend to punish people before they go to trial. When people are accused and arrested, we treat them the same way we treat those who have been found guilty: We put them in jail. If they can pay bail, we may release them; but if they can’t, we keep them locked up — and in so doing we punish them for being poor.

In fact, before the COVID-19 pandemic, between 40% and 70% of California’s county jail populations were made up of non-convicted people just waiting for trial. Presumption of innocence, indeed.

There are better ways to ensure that people accused of crimes remain out of trouble before trial and that they appear in court when they are supposed to. In San Francisco, a nonprofit agency has been offering pretrial services for 45 years, getting the accused released; keeping the public safe; ensuring that defendants appear on time for court hearings and comply with all court requirements; and where appropriate, arranging help with mental health, medical and housing needs.

These services are very much in line with the approach Los Angeles County has embraced but for the most part has yet to implement — care instead of jail, not merely to help defendants but to keep the public safe (and to put a smaller burden on taxpayers) by steering defendants away from the circumstances associated with problematic behavior.

There are efforts to offer similar services in Compton, Inglewood and West Hollywood. Under L.A. County’s Care First, Jails Last framework, the goal is to expand this community care and support effort countywide.

To offer these services, independent pretrial services agencies have to contract, directly or indirectly, with the courts. And once they get those contracts, those service providers naturally want to keep them, so they have a built-in incentive to keep judges happy by ensuring that defendants stay out of trouble and show up in court on time.

Now Gov. Gavin Newsom has proposed a giant expansion of a very different kind of pretrial program. In the coming fiscal year, $140 million would go to county probation departments to supervise defendants before trial.

That takes us right back to treating the accused the same as the convicted. Probation officers are law enforcement agents whose jobs include supervising people who already have been found guilty. They are on the lookout for violations of release conditions, and historically they have helped to ensure that those who trip up are returned to jail.

So they’re like state parole agents? Not exactly. Probation officers aren’t always armed, and they do indeed combine law enforcement training with some social service orientation. But they deal more with electronic ankle monitors, compliance checks and risk assessment algorithms than with housing, healthcare and needs assessments. Probation may have a place in the system. But it should not have the primary place in the system.

Several years ago, California lawmakers made a “grand bargain” to get courts and powerful public employee unions on board with ending bail, and part of the deal was a new, expanded role for probation departments. Was the trade-off worth it? Opinions vary widely, but the question became moot when voters rejected the bargain in 2020 with the defeat of Proposition 25. We shouldn’t be left with the probation part of the deal, especially since we still have money bail, and especially if probation officers are not the best people to keep the accused both out of jail and out of trouble.

Instead of entrusting the statewide expansion of pretrial services to probation departments, Newsom should rely on or at least include care-first service providers like those in San Francisco, Santa Clara County and, we hope, coming soon to Los Angeles County. Defendants awaiting trial should not be subject to the same kind of supervision as those who have been convicted. Remember, the creed is “innocent until proved guilty,” not “probation until proved guilty.”

This story originally appeared in Los Angeles Times.