Orange County District Attorney's office
The Orange County District Attorney’s office in Santa Ana. Courtesy of the DA

Orange County District Attorney Todd Spitzer has criticized a judge’s ruling ordering Sheriff Don Barnes to reduce the county’s jail population by half to allow for more social distancing among inmates during the COVID-19 pandemic.

Superior Court Judge Peter J. Wilson issued the order Friday in response to a lawsuit brought by the American Civil Liberties Union on behalf of inmates, some of whom have been released, who said they were particularly at risk due to underlying health conditions.

“A judge’s ruling to reduce the inmate population in the Orange County jail system by half will release dangerous and violent criminals back into our neighborhoods to commit more crimes and victimize more people. This is not fearmongering; it is a fact,” Spitzer’s statement said.

“The jail population, through the implementation of $0 bail and early release by the Sheriff, has been reduced by more than 33% since the beginning of the COVID-19 pandemic. The District Attorney’s Office has been keeping statistics in order to understand the impact of these court orders. Orange County inmates released early before serving their full sentence or on $0 bail went out and committed new crimes at rates at nearly triple normal recidivism rates: 44% for early release inmates and 38% for $0 bail defendants.

“A sample of their crimes: auto theft, burglary, robbery, assault, weapons, theft and narcotics. And a 23-year-old man who stabbed his 17-year-old ex-girlfriend four times, killing her. He had been released on $0 bail 3 1/2 weeks earlier,” the statement continued. “These are not just new crimes. These are new victims.”

On Friday, Barnes said his department was “evaluating the order, its impacts and our options for appeal.”

“If the order stands, it will result in the release of more than 1,800 inmates,” Barnes said. “Many of these inmates are in pretrial status for, or have been convicted of, violent crimes and will be released back into the community. This order puts our community at substantial risk and does not take into account the impact on the victims of these crimes.”

Spitzer said if the sheriff does appeal the ruling, the District Attorney’s Office would file an amicus brief with its data — “which demonstrates just how dangerous this decision is.”

Wilson said Barnes has options beyond unconditionally releasing inmates.

“They have ankle monitors,” ACLU attorney Corene Kendrick said.

Orange County has a “very robust” home-confinement and monitoring program, Kendrick said.

“It’s not rocket science on how to do it,” Kendrick said.

Wilson chided the county’s attorneys for failing to respond to the allegations from the inmates about the lack of social distancing in the jail system.

The ruling comes as Barnes wrangles with a new outbreak of COVID-19 in the jails this week. Barnes announced on Thursday there were 102 inmates infected with COVID-19. That number increased to 138 on Friday. Of those, 27 are newly booked inmates and 111 are in general population.

Austin Ambriz, one of the inmates who tested positive this week, was on trial for murder in Brea and closing arguments scheduled for Thursday had to be rescheduled for Jan. 4.

Kendrick said it was critical to reduce the jail population now at a time when the county’s hospitals are bulging with patients, setting daily records for hospitalizations and intensive care unit patients.

When sheriffs across the state were ordered earlier this year to reduce jail populations to help curb the spread of coronavirus, “it’s not like crime soared,” Kendrick said.

“The point is, and I think the judge got this, there’s a bigger public safety risk of having an outbreak of COVID-19 in the jail system when the county’s hospitals are already at the breaking point with skyrocketing infections,” Kendrick said.

“You really don’t want a bunch of incarcerated people coming into the hospitals. It’s a giant production. Everyone has to come with an officer. It becomes a strain on the community hospitals that is not needed.”

The plaintiffs include 27-year-old Sandy Gonzalez, who is awaiting trial for robbery and possession of drugs.

“She is medically vulnerable and has Type 2 diabetes and a history of smoking,” according to Wilson’s ruling. “She was exposed to her cellmate… who developed COVID-19 on the evening of May 14, 2020.”

The next day, Gonzalez tested positive, and she was moved to a “disciplinary isolation cell,” Wilson said.

Another plaintiff is 53-year-old Mark Trace, who pleaded guilty to possession of drugs for sale and was sentenced to 16 months in jail, Wilson said. Trace was held in the Theo Lacy jail in Orange until March 10, Wilson said.

Trace has “multiple, significant underlying health conditions” that include “sclerosis of the liver, hepatitis C and D, asthma, tuberculosis, valley fever and seizures.”

Trace was jailed in his own cell that was open and “shared air with the approximately 12 other individuals in his module,” according to Wilson.

“He was unable to consistently practice social distancing during his time in custody, and his access to medical care slowed after the COVID-19 outbreak began,” Wilson wrote.

It is not clear when the jail population has to be reduced by half, but Wilson mandated a report by year’s end.

Barnes said at a news conference on Thursday that his quarantine programs at the jail has been successful as only three inmates have had to be hospitalized and none has died from coronavirus during the pandemic.

Kendrick said those statistics are deceptive because only symptomatic inmates have been tested.

“They did very, very limited testing,” Kendrick said. “It doesn’t mean much if you’re only testing people with obvious symptoms of Covid. They kept pointing to the fact they’ve had so few positive cases, but they were testing so few people.”

Kendrick said a county physician had sent a memo to Barnes earlier this year that the jail population needed to be cut in half.

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