PRETRIAL 101 Colorado Association of Pretrial Services April

PRETRIAL 101 Colorado Association of Pretrial Services April 11, 2013 Penny Stinson

OVERVIEW OF MORNING SESSION Module 1: Legal and Evidence-Based Practices and National Standards Module 2: Performance Measurement: Measuring What Matters Module 3: Public Opinion and System Support National Association of Pretrial Services Agencies

MODULE 1 Legal and Evidence-Based Practices and National Standards National Association of Pretrial Services Agencies

FREEDOM

THE PURPOSE OF BAIL 1. Protect the integrity of the court process 2. Protect the public 3. Protect against punishment prior to conviction National Association of Pretrial Services Agencies

STACK V. BOYLE, 342 U. S. 1 (1951) “Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. [Those standards] are to be applied in each case to each defendant. ” National Association of Pretrial Services Agencies

STACK COURT ON EXCESSIVE BAIL “Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose (reasonably assuring the appearance of the defendant in court) is excessive under the 8 th Amendment. ” National Association of Pretrial Services Agencies

ABA STANDARD 10 -4. 3 Treating each case individually: Each case should receive individual treatment, and decisions should be based on the particular facts of the case and information relevant to the purposes of the pretrial release decision as established by law and court procedure. National Association of Pretrial Services Agencies

COLORADO LAW ON FACTORS TO CONSIDER Section 16 -4 -105 Defendant’s employment status and history Nature and extent of family relationships Past and present residences Character and reputation Nature of offense and probability of conviction Prior criminal history and appearance in court National Association of Pretrial Services Agencies

ABA STANDARD 104. 2/NAPSA STANDARD 2. 2 Investigation for the pretrial release decision Done in all cases where the defendant is in custody. Done before the pretrial release decision is made. Should include all factors related to assessing the defendant’s risks of danger to the community or failure to appear in court. Risk assessment findings should be linked to appropriate release options to address the identified risks. National Association of Pretrial Services Agencies

MODERNIZATION OF BAIL LAWS Presumption for release on least restrictive conditions § Federal Bail Reform Act of 1966 § State actions to duplicate Adding danger as a consideration § Federal Bail Reform Act of 1984 § State actions to duplicate National Association of Pretrial Services Agencies

ABA STANDARDS 10 -5. 1, 2. AND 3/ NAPSA STANDARD 2. 3, 2. 4 AND 2. 5 Release options: Presumption for release on recognizance Imposition of the least restrictive conditions of release when conditions are needed, beginning with nonfinancial conditions. Financial conditions should be used only when nonfinancial conditions are not sufficient to reasonably assure appearance. Financial conditions should not be used to protect the safety of the community. National Association of Pretrial Services Agencies

SUMMARY OF BAIL LAWS AND NATIONAL STANDARDS Decisions must be individualized, based on more than just the charge There is a presumption for release on recognizance That presumption must be overcome to impose any conditions Must consider both appearance and safety Preference for non-financial over financial conditions National Association of Pretrial Services Agencies

INCORPORATING EVIDENCE INTO THIS LEGAL FRAMEWORK Actuarial risk assessments Supervision levels Court date reminders National Association of Pretrial Services Agencies

ACTUARIAL RISK ASSESSMENT What it is § Data driven § Research informed § Objective aid to decision making § Used for decades in commerce § Health, education, national security, etc. What it isn’t § Person-specific § A replacement for judicial discretion National Association of Pretrial Services Agencies

RISK ASSESSMENT AUTO INSURANCE Age § Distracted driving § Peer(s) in vehicle with driver § Low driving skills § Low compliance with traffic laws National Association of Pretrial Services Agencies

RISK MITIGATION AUTO INSURANCE Drivers education Restrict nighttime driving Prohibit peers as passengers Strict enforcement: § Seat belts § texting, etc. National Association of Pretrial Services Agencies

RISK ASSESSMENT PRETRIAL JUSTICE Statistically measures probability of success/failure of 2 of the factors to consider for bail: § Appearance in court § Community safety National Association of Pretrial Services Agencies

PRETRIAL RISK MITIGATION Case manager supervision GPS supervision Drug testing Stay away orders Curfew Treatment/therapy Preventive Detention National Association of Pretrial Services Agencies

MATCHING SUPERVISION LEVELS TO RISK The risk principle: Supervision should be targeted for higher risk defendants, with the most intensive supervision levels available for the highest risk defendants. Placing restrictive conditions on low risk defendants increases likelihood of failure. 20 National Association of Pretrial Services Agencies

1985 SUPERVISED PRETRIAL RELEASE STUDY Focused on higher risk defendants – those who were denied non-financial release at the initial appearance. These defendants were placed in supervised pretrial release program. Outcomes: re-arrest and failure to appear rates were lower than for those released on money bail or on OR. (Study done in Miami, Milwaukee and Portland, OR. ) 21 National Association of Pretrial Services Agencies

2009 STUDY OF THE FEDERAL SYSTEM Moderate and higher risk defendants released with conditions were less likely to have a pretrial failure than moderate to higher risk defendants who did not have release conditions. National Association of Pretrial Services Agencies

COURT DATE REMINDER STUDIES Nebraska, 2010: appearance rate for reminded group – 92%, for control group – 88%. Multnomah County, OR, 2005: FTA rate for group receiving an automated reminder was 16%, compared to 28% for the group not receiving a call. Jefferson County, CO, 2005: FTA rate reduced from 23% to 11% when household reached and to 7% when defendant reached. 23 National Association of Pretrial Services Agencies

WHY USE EVIDENCE-BASED PRETRIAL PRACTICES? • Identifies individuals by risk category so appropriate and safe bail decisions can be made – Early assessment for specialty courts or other diversion to ensure those systems are also high-functioning – Setting money bail means the court legally released the defendant. Dangerous/violent can buy freedom. • Aids with jail population management – Saves room in jail for sentenced offenders, dangerous defendants, and violators of community supervision National Association of Pretrial Services Agencies

CASE STUDY - KENTUCKY In 2011 Pretrial risk assessment was legislatively mandated to perform a risk assessment for every defendant in Kentucky. National Association of Pretrial Services Agencies

PRETRIAL OUTCOMES IN KENTUCKY Overall Release rate: 70% Non-financial release rate: 66% Public Safety (no new arrests): 92% Appearance rate: 90% National Association of Pretrial Services Agencies

CASE STUDY - DC Pretrial services program mandated by law to assess risks and supervise defendants Detention permitted in certain circumstances A financial condition cannot result in the detention of the defendant. National Association of Pretrial Services Agencies

PRETRIAL OUTCOMES IN DC 80% of defendants released non-financially 15% detained without bail 5% have financial bonds 88% make all court appearances 88% have no rearrests National Association of Pretrial Services Agencies

WHY USE EVIDENCE-BASED PRETRIAL PRACTICES? • Identifies individuals by risk category so appropriate and safe bail decisions can be made – Early assessment for specialty courts or other diversion to ensure those systems are also high-functioning – Setting money bail means the court legally released the defendant. Dangerous/violent can buy freedom. • Aids with jail population management – Saves room in jail for sentenced offenders, dangerous defendants, and violators of community supervision • Right thing to DO National Association of Pretrial Services Agencies

MODULE 2 Performance Measurement: Measuring What Matters: Outcome and Performance Measures for the Pretrial Field, National Institute of Corrections, Pretrial Executives Network National Association of Pretrial Services Agencies

OVERVIEW OF THE MEASURES Outcome Measure : An indicator of effectiveness in achieving a stated mission or intended purpose. Performance Measure : A quantitative or qualitative characterization of performance. Mission Critical Data : Supporting data in areas strategically linked to outcomes and performance. These data track progress in areas and on issues that supplement specific measures. National Association of Pretrial Services Agencies

SUGGESTED OUTCOME MEASURES Appearance Rate : The percentage of supervised defendants who make all scheduled court appearances. Safety Rate : The percentage of supervised defendants who are not charged with a new offense during the pretrial stage. Concurrence Rate : The ratio of defendants whose supervision level or detention status corresponds with their assessed risk of pretrial misconduct. National Association of Pretrial Services Agencies

SUGGESTED OUTCOME MEASURES Success Rate : The percentage of released defendants who are 1) not revoked for technical violations due to condition violations, 2) appear for all scheduled court appearances, and 3) are not charged with a new offense during pretrial supervision. Pretrial Detainee Length of Stay : The average lengths of jail stay for pretrial detainees that are eligible by statute for pretrial release. National Association of Pretrial Services Agencies

SUGGESTED PERFORMANCE MEASURES Universal Screening : The percentage of defendants eligible for release by statute that the program assesses for release eligibility. Recommendation Rate : The percentage of time the program follows its risk assessment criteria when recommending release or detention. National Association of Pretrial Services Agencies

SUGGESTED PERFORMANCE MEASURES Response to Defendant Conduct : Frequency of policyapproved responses to compliance and non-compliance with court ordered release conditions. Pretrial Intervention Rate : The pretrial services program’s effectiveness at resolving outstanding bench warrants, arrest warrants, and capiases. National Association of Pretrial Services Agencies

SUGGESTED MISSION CRITICAL DATA Number of Defendants Released by Release Type and Condition : The number of release types ordered during a specific timeframe. Caseload Ratio : The number of supervised defendants divided by the number of case managers. Time From Non-Financial Release Order to Start of Pretrial Supervision : Time between a court’s order of release and the pretrial program’s assumption of supervision. National Association of Pretrial Services Agencies

SUGGESTED MISSION CRITICAL DATA Time on Pretrial Supervision : Time between the pretrial services program’s assumption of supervision and the end of supervision. Pretrial Detention Rate : Ratio of pretrial defendants who are detained throughout pretrial case processing. National Association of Pretrial Services Agencies

MODULE 3 Public Opinion And System Support National Association of Pretrial Services Agencies

VIDEO CLIP National Association of Pretrial Services Agencies

PUBLIC OPINION SURVEY: FLORIDA • 2012 survey of Republican voters in Florida: 91% agreed that risk should be the main factor in determining release; 69% agree that a defendant’s ability to pay should not be a main factor in determining release. National Association of Pretrial Services Agencies

PUBLIC OPINION SURVEY: NORTH CAROLINA 2012 survey of residents of Mecklenburg County, NC: 76% support a policy of judges releasing defendants on the least restrictive conditions. National Association of Pretrial Services Agencies

NATIONAL SURVEY RESULTS: RISK ASSESSMENT AND RISK MANAGEMENT Less Important How important is it to reform the cash bail system …. . extremely important, very important, somewhat important, not too important, or not at all important? National Association of Pretrial Services Agencies

RISK ASSESSMENT: EFFECTIVENESS Protecting Community Safety +58 And how effective do you think risk assessment would be when it comes to protecting community safety? Do you think it would be very effective, somewhat effective, a little effective, or not effective at all? Preventing Flight and Ensuring Appearance in Trial +53 And how effective do you think risk assessment would be when it comes to preventing flight and ensuring appearance at trial? Do you think it would be very effective, somewhat effective, a little effective, or not effective at all? National Association of Pretrial Services Agencies

NATIONAL SURVEY RESULTS: SUPPORT FOR REFORM +68 Some have proposed using risk-based screening tools instead of cash bail bonds to determine whether defendants should be released from jail before trial. This risk assessment would take into account such factors as the nature of the offense in question, the suspects criminal history, as well as their employment, residency, drug use history and mental health. Under this system, high-risk defendants would be held in jail until trial, and low-risk defendants would be released with conditions and be monitored and supervised. Would you support or oppose this proposal, or are you undecided? National Association of Pretrial Services Agencies

CALL FOR PRETRIAL REFORM SINCE 2010 National Association of Pretrial Services Agencies

ATTORNEY GENERAL ERIC HOLDER “By competently assessing risk of release, weighing community safety alongside relevant court considerations, and engaging with pretrial services providers, we can design reforms to make the current system more equitable, while balancing the concerns of judges, prosecutors, defendants, and advocacy organizations. We can help those serving on the bench make informed decisions that improve costeffectiveness and preserve safety needs, as well as due process. ” National Association of Pretrial Services Agencies

http: //vimeo. com/28740632 National Association of Pretrial Services Agencies

CONFERENCE OF CHIEF JUSTICES The Conference of Chief Justices urges “that court leaders promote, collaborate and accomplish the adoption of evidence-based assessment of risk in setting pretrial release decisions, … ” National Association of Pretrial Services Agencies

NATIONAL SHERIFF’S ASSOCIATION “…The National Sheriffs’ Association supports and recognizes the value of highfunctioning pretrial services agencies to enhance public safety; promote a fair and efficient justice system; provide assistance to sheriffs in the administering of a safe jail and reducing jail crowding; and help relieve the financial burden on taxpayers. ” National Association of Pretrial Services Agencies

INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE …WHEREAS, it is the responsibility of the criminal justice system to continually evaluate the impact of policies, procedures and common practices by developing standards that support individual rights, crime prevention, and public safety; and WHEREAS, the United States Supreme Court has held that danger to the community is a legitimate consideration when setting bail or pretrial release conditions; and… National Association of Pretrial Services Agencies

INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE …RESOLVED, the International Association of Chiefs of Police (IACP) calls for a national law enforcement summit to address the need for bail reform and in particular the urgent need for more robust pretrial services that conduct dangerousness assessments for use by the judiciary when considering pretrial release. . . National Association of Pretrial Services Agencies

ASSOCIATION OF PROSECUTING ATTORNEYS APA “recognizes the value of accurate and reliable pretrial information provided to prosecutors and magistrates for the enhancement of public safety, safeguarding the judicial process, and aiding prosecutors in their ability to determine appropriate diversions and special court admissions. Pretrial services employing validated risk assessments provide useful data and offer practical information essential to making informed decisions. ” National Association of Pretrial Services Agencies