As District Attorney Todd Spitzer faces accusations of racial bias from his own prosecutors, a local civil rights group says his office is continuing to perpetuate “vast racial disparities” in who gets prosecuted for crimes, as well as criminalizing mental illness and poverty.

Black people are much more likely to face criminal charges in Orange County than the rest of the population – and less likely to be offered diversion programs to avoid jail time – according to the ACLU.

The group cited figures that Black people are 2% of OC’s population but almost 6% of those who face criminal charges.

Among other measures, the ACLU is calling on DA Todd Spitzer to commit to “blind charging,” which bans prosecutors from seeing the race of potential defendants before making a decision on whether to charge them with a crime.

[Click here to read the ACLU’s summary of their report, the report and their news release about it.]

Spitzer criticized the ACLU study – saying their report is part of a campaign that would endanger Orange County residents by weakening prosecutions in the style of LA and San Francisco.

“This report is the ACLU’s playbook for the failed policies of Los Angeles and San Francisco, resulting in soaring homicide and violent crime rates,” Spitzer said in a statement.

“The job of a District Attorney is to keep our communities safe. Orange County is the safest large county in California and I am proud of that fact,” he continued.

“I have been very clear that I will hold violent offenders accountable while demonstrating empathy and compassion by reducing recidivism and partnering with mental health services to provide those who are suffering from substance use disorders and mental illness treatment and a pathway out of the criminal justice system,” Spitzer said.

But the ACLU says that despite those promises, Spitzer’s office has been pursuing low-level charges just like his predecessor.

“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,” the ACLU wrote.

“It is clear that the trend of filing low-level charges continues under the current OCDA’s direction.”

The ACLU cited what it called a troubling lack of transparency by Spitzer about who his office is prosecuting.

While the ACLU requested data on criminal charges, Spitzer would only provide numbers from his predecessor Tony Rackauckas’ time in office – despite Spitzer promising to be more open than Rackauckas – according to the ACLU.

“The lack of transparency with respect to charging data under the current OCDA’s tenure is particularly concerning, given that the current OCDA ran on a platform of transparency,” the ACLU wrote in a summary of their report.

“All available evidence suggests that the office’s policies and practices have not shifted substantially under the current OCDA.”

Faced with that roadblock, the ACLU analyzed court case data Voice of OC obtained last year.

That data showed that the most-prosecuted crime in Orange County is possession of paraphernalia for using drugs, such as meth pipes, according to local court data Voice of OC requested obtained and published. 

“Although the current OCDA’s office refused to provide updated information for 2019 and 2020, the local news outlet Voice of OC received records from the OC Superior Court that include charging data from the first year and a half of his tenure,” the ACLU wrote.

“It is clear that the trend of filing low-level charges continues under the current OCDA’s direction. Seven of the top 10 charges from 2017 and 2018 remain in the 10 most frequent charges across FY 2017–18 and FY 2019–20,” the ACLU wrote.

The civil rights group pointed to the most frequent charges – like DUI, possession of meth, petty theft, driving under a suspended license and being under the influence of drugs – as “low level” charges where defendants should be offered alternatives to criminal prosecution, such as treatment programs.

Doing so would “would eliminate more than half of the DA’s caseload,” the report states.

In response, Spitzer pointed to new units he created to reduce reliance on jail in mental health cases.

“We cannot incarcerate our way out of mental illness, which is why I created a Mental Health Unit and a Recidivism Reduction Unit,” Spitzer said in his statement responding to the ACLU report.

“I have worked to reduce the jail population with prudent, risk-based bail assessments that protect the community while ensuring those who don’t need to be incarcerated aren’t,” he continued.

“I am also in the final planning stages of rolling out a pre-filing diversion partnership in conjunction with our law enforcement partners.”

Racism allegations – including from his own prosecutors – are something Spitzer has spent the last couple of weeks trying to shake.

In mid-February, documents emerged showing Spitzer was accused by his staff of making inappropraitae racial remarks when deciding whether to seek the death penalty against a Black defendant, Jamon Rayon Buggs.

Then, a judge unsealed a letter in which the lead detective in the Buggs case says Spitzer ruined the death penalty case by making inappropriate racial remarks and then trying to cover it up.

Newport Beach Detective Court Depweg wrote to the judge that he had been told by multiple current and former DA officials that Spitzer “made an unsolicited, derogatory, and racist comment about Black men/persons” at an Oct. 1 meeting on whether to seek the death penalty against Buggs.

Ahead of an all-staff meeting Spitzer held last week, DA prosecutors put forward scathing questions to Spitzer about whether he’s destroyed criminal cases and faith in the justice system by injecting race and politics into law enforcement decisions.

“In recent media interviews…you refuse to recognize that your comments were inappropriate, offensive and racist,” the prosecutors wrote, referring to Spitzer’s comments in the Buggs case.

“In fact, you doubled down on your comments as appropriate,” the prosecutors wrote in their letter, which included 7 pages of detailed questions.

During his response at an all-staff meeting Friday, Spitzer reportedly ​​gave a tearful address in which he said he’s not a racist, noting he was born Jewish and once traveled to Selma, Alabama.

Spitzer also reportedly doubled down on saying he had no idea until 90 days later that there was a problem with his language about Black men at the Oct. 1 death penalty meeting – which allegedly contradicts emails filed in court last week.

And Spitzer reportedly added that DA staff are lucky to have him fighting for them and Orange County so we don’t turn into the next LA or San Francisco, adding he’s a “badass” and a “fighter.”

Asked about this account, Spitzer’s spokeswoman said it’s “not entirely accurate” but did not respond when asked what’s correct and what is not.

“The District Attorney asked for an all-staff meeting so that his staff could hear directly from him without misinformation or anything being misconstrued,” Edds wrote in a statement to Voice of OC.

“Unfortunately, the information you were provided out of that staff-only meeting of the largest law firm in Orange County is not entirely accurate. The staff heard the information directly from the District Attorney and it does not warrant further interpretation.”

Spitzer is now facing accusations from a former homicide prosecutor that he lied to the court to try to hide his racially charged comments – which Spitzer denies.

As for the ACLU report, Spitzer says the civil rights group doesn’t care about public safety and is trying to dismantle law enforcement.

“The ACLU is no friend of law enforcement and this report based on outdated data is nothing more than another way to defund the police and jeopardize public safety,” he said in his statement.

“One only has to look at the disastrous policies adopted by George Gascon to see that blanket directives do not work. Every case must be assessed on its specific facts and while the ACLU might not care about the safety of the community I serve, I do.”

In response, the ACLU says they stand by their analysis and questioned why Spitzer didn’t release the data from his administration.

“If DA Spitzer is so proud of his record, why did he refuse to release details of the results to his policies, revealing only those of his predecessor?” said Jennifer Rojas, a senior policy advocate and organizer at the ACLU of Southern California, in a statement provided by the civil rights group.

“We stand by our assessment of his administration and his tenure, during which he has done far too little to relieve the racial and economic disparities that result from his office’s charging practices, while not building toward declination and diversion programs that are proven to work. Orange County residents do not need more fearmongering, they need community-driven results.”

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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