+ Using Legal and Evidence-Based Practices in Pretrial Decision Making
+ Pretrial Justice Institute, 1977 2 The nation's only non-profit organization dedicated to advancing safe, fair and effective pretrial practices and policies. We do this by: Educating key stakeholders Moving stakeholders to action Working in key states to advocate for change Developing messages, stories, and media coverage in support of change Connecting local jurisdictions to long-term TA providers who can help recommend and implement change.
Pretrial Detainees Far Outnumber 3 Sentenced Jail Inmates 600,000 Pretrial Detainee Population on June 30 500,000 Sentenced Population on June 30 400,000 300,000 200,000 100,000 0 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2009 2010 2011 Bureau of Justice Statistics, Jail Inmates at Midyear, 2011
Reported Crime Violent Crime Rate 800 Crime Rate per 100,000 700 600 500 400 300 200 100 0 1990 1995 2000 2005 2010 4
Percent of Arrestees that Go to Prison 3% 5
+ Implications of Bail 6 Maintain employment, family ties, residence, etc. Assist Counsel Access to treatment/services Protection of victim/public Public costs of detention Disruption of case process Harsher dispositions
+ Pretrial Justice Legal Foundations 7 Presumption of Innocence Right to Counsel Right Against Self-incrimination Right to Due Process of the Law Right to Equal Protection Under the Law Right to Bail that is Not Excessive
+ Four Groups of Pretrial Defendants 8 High Risk Low Risk Public Safety Problem Best Match Out Best Match Increases Recidivism and Costly In Jail
+ Stakeholder Support 9 National Association of Counties International Association of Chiefs (2009) of Police (2011) American Probation and Parole American Bar Association and Association (2010) American Civil Liberties Union (2011) American Jail Association (2011) National Sheriffs’ Association American Council of Chief (2012) Defenders (2011) National Association of Criminal Association of Prosecuting Defense Lawyers (2012) Attorneys (2011) Conference of Chief Justices (2013 expected)
+ Significant Case Law Related to Bail 10 Stack v. Boyle, 342 U.S. 1 (1951) The purpose of bail is to assure the presence of the defendant. Bail set higher than reasonably necessary to effectuate that purpose is excessive. Bail must be fixed for each individual defendant according to standards relevant to assuring the presence of that defendant. Pretrial release permits the unhampered preparation of defense, protects the presumption of innocence, and prevents punishment before conviction.
+ Significant Case Law Related to Bail 11 U.S. v. Salerno 481 U.S. 739 (1987) The government has a legitimate interest in preventing further crimes by dangerous defendants through pretrial detention in very limited circumstances. Provides the constitutionally required procedural safeguards to prevent unfair or unnecessary detention, including: the right to counsel, the ability to call witnesses, the government’s burden of proof by clear and convincing evidence, and written findings of fact by the judicial officer.
+ Bond Schedules 12 Sometimes called “standard bond” The predominant mechanism for assigning bail before first appearance The predominant mechanism carried forward in court
+ Bond Schedule 13 Charge based Easy, quick to use Represents “what to expect”
+ Bond Schedule 14 Static/one dimensional Fail to factor individual risks and strengths of defendant Legislative mandate considerations Legally, can’t use money to address danger Empirically, money isn’t associated with safety 47% of felony defendants who have money bail set are released, risk levels unknown Practically, no individual conditions tailored to mitigate risk imposed/monitored
+ Symposium Report/Recommendations 15
+ Symposium Highlighted Challenges 16 Moving pretrial decision making to an evidence- based platform Using data to inform discretion in order to attain safe, effective and fair outcomes
+ High-Functioning Pretrial Justice 17 System Risk-based use of citations in lieu of arrest Early screening of charges Diversion, problem-solving courts, dismissal Early appointment of defense counsel (bail hearing) Pretrial risk assessment for release/detain decision Detention with due process Release with risk/need based conditions Monitoring of conditions imposed Accountable and transparent reporting To court of compliance with conditions Process and outcome measures of releases by type, risk level
+ Early Screening of Cases 18 Screening by seasoned prosecutors Charge review Case strength Eligibility determinations for diversion, problem solving courts Early triage Saves time Saves money Reduces chance of inadvertently increasing future risk Community Prosecution
+ Actuarial Risk Assessment 19 Evidence-based Empirically-derived Validated Used for decades in other fields Health, education, car insurance, national security, etc.
+ Risk Assessment in Aviation Security 20 Risk Factors: One way ticket/last minute Attire inconsistent with season Paid in cash Avoids crowds at No luggage gate/boards last Avoids eye contact
+ Risk Mitigation in Aviation Security 21 Additional screening Cross- check with “known threat list” Direct observation FAM deployment Deny boarding
+ Risk Assessment in Pretrial 22 Statistically measures probability of success/failure of the two factors to consider for bail: Appearance in court Community safety
+ How Does it Work? 23 Data sample is drawn and examined Shared characteristics measured for predictive strength Risk level assigned according to probabilities (low, medium, high) Model is tested to prevent unintended bias
+ Pretrial Risk Factors 24 Current charge Other pending cases Criminal history Failure to appear history Residence Employment History of substance abuse or mental illness
+ Pretrial Risk Mitigation 25 Case manager supervision GPS supervision Drug testing Stay away orders Curfew Treatment/therapy
+ Risk/Need/Treatment Principle 26 Must drive assignment of mitigation strategies Saves money Saves time Reduces chances of inadvertently increasing risk “Lower” risk defendants: More likely to fail when released to supervision compared with similar released on recognizance “Moderate” and “higher” risk defendants: Less likely to fail when released to supervision than similar defendants released on recognizance
+ Probability of Failure by Risk Level 27 High Above Average Probability of Rearrest Below Average Probability of FTA Low 0% 5% 10% 15% 20% 25%
+ Pretrial Outcomes in Kentucky 28 In 2011 Pretrial risk assessment was legislatively mandated to perform a risk assessment for every criminal defendant Overall Release rate: 70% Non-financial release rate: 66% Rearrest rate: 8% Failure to appear rate: 10%
+ State of Pretrial Justice in America 29 Bond schedules in use nearly everywhere Detention provisions not statute or unused Pretrial risk assessment done in maybe 15-20% of jurisdictions Many counties lack necessary options for supervision, treatment, monitoring
+ Reasons Why Things Can’t Change 30 We don’t have the time We don’t have the money Our community is very conservative and won’t tolerate it
+ Public Opinion Research 2012 31 Funded by the Public Welfare Foundation and conducted by Lake Research Partners Five focus groups of undecided, or ambivalent, on reform of the cash bail system participants white, non-college educated women in Richmond, VA; 3/19/2012 mixed-gender African Americans in Richmond, VA; mixed-gender Latinos in Denver, CO; 3/22/2012 white, non-college educated men in Denver, CO; white, college-educated women in Denver, CO. Telephone poll June 7-13, 2012 815 adults, 18 years or older, nationwide who are registered and likely to vote in the 2012 General Election; margin of error for this poll is +/-3.4%.
+ Contours of Support for Risk 32 Assessment There is overwhelming public support for risk assessment — even in the face of withering criticism. At the outset, more than three-quarters of voters support using risk- based screening tools instead of cash bail bonds to determine whether defendants should be released from jail before trial, with high-risk defendants held in jail until trial and low-risk defendants released under monitoring and supervision. Majorities support this reform strongly. Moreover, support barely budges when we simulate an engaged debate over this issue, even using standard opposition arguments.
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