A memorial at Second and Mission streets honored the victims of a deadly New Year’s Eve hit-and-run, a collision that triggered finger-pointing afer it was discovered the alleged driver was a parolee with multiple recent arrests. <ins>(Kevin N. Hume/S.F. Examiner)</ins>

A memorial at Second and Mission streets honored the victims of a deadly New Year’s Eve hit-and-run, a collision that triggered finger-pointing afer it was discovered the alleged driver was a parolee with multiple recent arrests. (Kevin N. Hume/S.F. Examiner)

Fearmongering over high-profile tragedy could undo decades of progress on criminal justice

Misunderstandings about parole system plague debate on fatal hit-and-run case

By Hadar Aviram and Lara Bazelon

On New Year’s Eve, a fatal car accident in downtown San Francisco claimed the lives of two women and sent The City’s residents reeling. The man behind the wheel, Troy McAlister, was intoxicated and driving a car he had stolen from a date. He was also, as the media noted, on parole. Following his guilty plea to two counts of second-degree robbery in connection with a 2015 holdup in a San Francisco store, he was released in 2020 with conditions, including supervision by his parole officer. During that time, he was arrested on allegations that he had committed nonviolent offenses but had not been jailed or prosecuted.

Local media, channeling the Police Officers’ Association and tough-on-crime constituents, expressed outrage at District Attorney Chesa Boudin, who assumed office after winning election on a reform platform one year earlier. McAlister should have been locked up months earlier, at the first sign of trouble, they said. The San Francisco Chronicle’s Editorial Board laid the blame squarely at Boudin’s feet, slamming him for “shunning his responsibility” and proclaimed that his progressive policies “are on hold.”

As experts on criminal justice policy, we are disheartened by the misstatements and misunderstandings about parole that have plagued media coverage and public discourse of this tragedy. The Chronicle’s narrative is convenient, but it isn’t accurate. It is also a recipe for a reversion to tough-on-crime policies that have created a racially biased criminal justice system that has resulted in mass incarceration with no increase in public safety. In fact, nonviolent allegations against parolees are best handled by their parole officers because they have more tools in their toolbox and the reckoning, if called for, is swifter.

People on parole can find themselves back in prison in two ways: by committing a new crime, for which they are prosecuted and tried, or by committing a parole violation and having their parole revoked. When these paths overlap — when the parole violation is also a new crime — the parole revocation route is often more efficient. That is because parole revocations require a far lower standard of proof — just over 50 percent, while criminal convictions necessitate proof beyond a reasonable doubt. It is also because parole revocations can result in immediate reincarceration, while prosecutions for nonviolent crimes often result in pretrial release into the community as the case drags on for months, if not years.

To be clear, we are not hurling blame at the parole officer, who must engage in a delicate balancing act. Not every parole violation should result in automatic incarceration: separating those that do requires a complicated balancing of factors. Since the Schwarzenegger Administration’s parole reform in 2009, which was aimed at alleviating the staggering 200 percent overcrowding in the system, parole agents have a range of intermediary sanctions they can employ short of jail. Like any situation involving risk prediction, when deciding whether to remand a person into custody or use an intermediary sanction, parole agents risk making one of two types of mistakes. False negatives are situations of mistakenly underestimating the risk of reoffending, such as in McAlister’s case. False positives are the reverse: situations where a person who would not have reoffended is kept behind bars due to an overestimation of risk.

False negatives tend to draw considerable attention when they result in injury or death; unfortunately, media tendencies to stoke punitive sentiments often result in taking these high-profile incidents out of context.

Consider the sad fact that the fatality caused by Troy McAlister was merely one of the dozens of deadly traffic accidents that occur annually in San Francisco; each and every one of them leaves a deep wound of grief in its aftermath, and many of them are as preventable as this one. However, the vast majority never make the news, because they do not involve parolees, which is why we deal with them through nonpunitive policy initiatives, rather than through screeds against our elected officials.

False positives, while they attract little media attention, are far more common; every day we incarcerate people who could safely be released. The downsides to that overcorrection include not only derailing forward progress and separating families, but also lost lives. Since March 2020, more than 45,000 people in California prisons have been infected with the coronavirus and 175 have died. Most of those fatalities were older people who, based on robust criminological research, could be safely assumed to have aged out of crime, and who would have posed no danger to the outside world had they been released. Nor are they the only victims. Jails and prisons became incubators of COVID-19, correctional staff transmitted the disease to their families and friends, which resulted in infections, illnesses, and deaths in the communities surrounding the prison.

Sadly, whenever risk prediction is involved, unavoidable mistakes of both kinds may occur. This is heartbreaking and inevitable, but it does not point to systemic flaws at the prosecutor’s office or at the parole agent’s office.

Our concern goes beyond this particular case. Throughout the country, voters have elected progressive prosecutors because they were sick of harsh, ineffective charging policies and unaccountable police departments; they voted for social services, relief from cash bail, wrongful convictions units, and humane jails. If there is one mainstay of criminal justice reform over the last few decades, it is this: one horrific, high-profile tragedy, accompanied by irresponsible journalistic fearmongering, can undo decades of proven and sustained progress. We hope and pray that will not be the case here—for everyone’s sake.

Hadar Aviram is a professor of law at University of California, Hastings College of the Law. Lara Bazelon is a professor of law at the University of San Francisco School of Law.

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