ACLU accuses Merced County DA of ‘draconian’ policies that disproportionately impact Black people

Merced County District Attorney Kimberly Lewis is the focus of a critical American Civil Liberties Union report accusing her office of practices contributing to disproportionately high incarceration rates among Black people and vast disparities in charging people who are mentally ill.

Lewis, who took office in 2019, dedicates much of her office's resources toward prosecuting lower level crimes, according to the report titled "In (Justice) in Merced County: A Case for Change and Accountability," released this week by the ACLU Foundation of Northern California.

The report accuses Lewis of "draconian policies" that placed disproportionate levels of Black people into jails and prisons — oftentimes for lower-level crimes where community-based diversion programs would have been appropriate.

The ACLU simultaneously this week also released a similar report critical of Sacramento County District Attorney Anne Marie Schubert.

"The policy changes that we are calling for have been proven to reduce the likelihood that people will have repeated contact with the criminal legal system, while also reducing crime," said Yoel Haile, director of the criminal justice program at the ACLU of Northern California.

"It makes absolutely no sense for these DAs to dole out unnecessarily harsh penalties for low-level offenses which increases incarceration rates and leads to soaring costs. Voters can and should hold them accountable."

Lewis defended her office's practices Friday in a three-page statement sent to the media and posted on her department's Facebook page.

Lewis said she believes the ACLU report shows she delivered on her 2018 campaign promise to execute tough, fair and honest prosecutions. "I will never apologize for the aggressive prosecution of serious and violent crimes because that is my job," Lewis wrote in her response to the ACLU report. "I will always advocate for victims' rights and public safety."

According to the ACLU report, less than 4% of Merced County's population is Black, but 9.23% of all adults and 17% of all juveniles charged in Merced County Superior Court were Black in 2019 and 2020.

"I think it is important to consider the large influence of gang violence in our communities and its tendency to lure participants based upon their ethnic and cultural similarities," Lewis wrote in response to the report.

"This office is working to improve transparency, and, as the ACLU recognized, the fact that the statistics used in the report were available is testament to the improvements made since I took office. I am committed to continuing this effort."

Lewis added in her statement that sentences are levied appropriately. "The role of the District Attorney is to consider the needs of society as a whole," Lewis wrote. "If an individual continues to present a danger to society, it is the duty of this office to advocate against their release."

According to the 38-page ACLU report, Lewis filed more criminal charges in 2019 and 2020 than her predecessor, the late Larry Morse II, did during the last two years he was Merced County district attorney.

In those years, the report says Lewis filed 4,512 DUI charges compared to 4,277 filed by Morse, 1,927 driving with a suspended license charges compared to 1,756 filed by Morse, 1,070 meth possession charges compared to Morse's 869 and 766 vandalism charges compared to 628 filed by Morse.

Furthermore, Lewis filed more charges in those types of criminal cases than Morse, although crime was down during those two years, because some of that time was during the COVID-19 outbreak, the report said.

Lewis was also criticized for allegedly not making good on a campaign promise to publish metrics on racial disparities in criminal charging and sentencing.

Meanwhile, the report has led to concern among some leaders in Merced's Black community and local activists.

Officials like Merced NAACP President Allen Brooks, who also sits on the Merced City School District board, expressed no surprise at the findings of the ACLU report, saying that the number of teenagers of color who are prosecuted for crimes like drug possession and trespassing are typical of what he's seen in years past.

"That's one of my things, is making sure we're not prosecuting young adults for low-level crimes, especially while they're still in school," said Brooks.

"Once you do that, you've already molded that person's future. Nine out of ten times, once they catch a criminal charge while they're at school, they're not going to finish because they already have a felony under their belt before they even graduate from high school."

For-profit diversion programs questioned

The ACLU report also accuses the Merced County District Attorney's Office of working with private, for-profit companies to provide diversion services to criminal offenders in Merced County.

The ACLU report alleges these companies — Mission Viejo-based Corrective Solutions, and Auburn, Calif.-based Pacific Education Services — have a dismal completion rate for their diversion programs and regularly employ predatory practices.

According to the ACLU, such companies have little public transparency or accountability. Plus, participants ordered to complete those programs allegedly pay exorbitantly high fees in order to complete them.

The success rate for those programs, according to the report, was less than 20% in 2017 and 2018, the last two years the diversion program providers have information for.

But according to Corrective Solutions Chief Operating Officer and General Counsel Thomas Johnson, the company hasn't provided any services to Merced County for a few years. When they did, it was very little, Johnson said.

"It's interesting we're named at all (in the report)," Johnson told the Sun-Star. "(The ACLU) is dragging us through the mud for a program we're not even operating. We've never done any services for the current DA and it's odd to me we were pulled into this report."

An employee of Pacific Education Services told the Sun-Star where the company was located, but wouldn't answer any other questions.

The ACLU report goes further by recommending the Merced County District Attorney's Office terminate contracts with these private companies that provide diversion programs to the county and end the practice of charging fees for those programs.

Lewis said in the statement that the diversion program providers are selected and monitored by the Merced County Superior Court and the county's probation department, not her office. She also said fees are managed by the court.

Johnson added the cost of the diversion program provided by Corrective Services cost $150 at the outset, and after that, the company charged participants in the diversion program $40 a month for the four months of the program.

He also said a sliding scale was available to people who had trouble paying. He pushed back on the completion rate of the diversion program.

"There were a lot of cases that were referred, but the cases that were referred did not have contact information of the participant, so there was no way for us to reach out to get them information about the program," Johnson said.

"It's a lot lower of an enrollment rate because we're often not even given accurate contact information at all. Of the people we were able to reach and enrolled in the program, approximately 80% completed the program."

Recommendations in the report

The report's key recommendations include:

•Discontinuing criminal prosecution of certain low-level offenses like drug possession and trespassing.

•Adopt a list of low-level offenses such as misdemeanor DUI and petty theft that district attorneys automatically address through community-based treatment, rather than prosecution.

•Instituting a policy to never transfer a minor child offender to adult court and limiting discretionary decisions that treat some crimes as felonies.

•Stop the practice of charging fees for diversion programs.

The ACLU also wants Lewis to end racial disparities in criminal prosecution by treating "wobblers" (crimes that can be prosecuted as felonies or misdemeanors depending on the DA's discretion) as misdemeanors in most, if not all, cases.

The recommendations in the report might not go far enough, according to some who closely track mass incarceration and policing in Merced.

"Housing, mental health and substance abuse are probably going to be the three largest areas we can work on to prevent issues that lead to a lot of what we consider crime," said Kit Myers, assistant professor of critical race and ethnic studies at UC Merced.

"There's a strong belief that being tougher on crime is going to make us safer, and that belief is starting to shift and people are implementing reforms and that's starting to show in a positive way."

The ACLU report could help reduce the disproportionate numbers of Black and brown people the DA pursues criminal charges against, said Jesse Ornelas, who represents District 1 on the Merced City Council and is a member of the local Brown Beret chapter.

"There's probably an inadequate amount of resources directed in the community towards diversion programs," Ornelas said. "There's an inadequate amount of affordable housing and gainful employment for people who live in these areas. Crime is a symptom of poverty."