Delaware’s Pretrial Modernization Effort Chief Magistrate Alan Davis January 6, 2018

Today’s Topics History of Delaware’s Pretrial Reform Efforts Our Current System - Briefly Implementing Systemic Change

Revision of Bail Guidelines History of Bail Reform Bail Guidelines 1980s JRI Revision of Bail Guidelines Discussion Points Bail Guidelines Initiated By: Outputs: Directives Revision of Guidelines Initiated By: Chief Magistrate Davis Outputs: Bench Book Policy Directives calling for Individualized decision making based on totality of circumstances Calling for imposition of least restrictive bail type and amount for each case. Document factors which lead to a secured bail type and those that lead to a decision outside the monetrary range suggested by the guidelines Updated monetary ranges to match increases in cost of living. JRI 1. SB 224: required development of pretrial risk assessment tool. established mandatory reporting and modification to release eligibility for DOC.

Current Pretrial Initiative SMART Pretrial Access to Justice Delaware Pretrial Modernization Effort Discussion Points In 2014, the Delaware Center for Justice was awarded a three year grant to coordinate stakeholders’ efforts to improve the pretrial justice system. The Policy team is chaired by Chief Magistrate Davis and represents a collaborative effort. Volunteers include decision makers from the Delaware State Police, the Governor’s Office, the Attorney General’s Office, the Department of Correction, and the Office of Defense Service. The team also partners with the Police Chief’s Council, the Criminal Justice Council, the Statistical Analysis Center, DELJIS, members of local law enforcement, and the Coalition against Domestic Violence. The team focused on education, data collection and analysis, and building consensus towards shared goals. While the federal grant period has ended, the effort continues under the leadership of Chief Magistrate Davis with plans to transition coordination responsibility to the Criminal Justice Council. In 2015, Access to Justice created a subcommittee of the Fairness Subcommittee to examine bail and initial detention hearings. For efficiency, the subcommittee began working with the SMART Pretrial group.

Our Current System Discussion Points: Work thus far has been in developing strategic plan and working subcommittees to implement goals. Stress Collaboration

Delaware’s Pretrial System Arrest to Initial Appearances Awaiting Trial Charge & Police Processing Summons v. Arrest Fingerprint & ID Warrant processing Initial Presentment Informed of rights Initial bail set/conditions Limited info & representation Preliminary Hearing (felony) 1st bail review Probable cause confirmation Pretrial Services Supervision If released and ordered Standard and extra conditions Case Reviews Opportunity for bail review Trial Held post-adjudication pending sentencing Sentencing

Bail Decisions by Type (Actual) Type of Bail Cases   Number Percent Cash-Only 9,772 12.9% Secured 19,596 25.8% Unsecured 31,886 42.0% Own Recognizance 14,658 19.3% Total 75,912 100.0% * Donnelly, Ellen and John MacDonald; Extension of Delaware Disparity Study: Assessing Bail Processes and Pretrial Decision-Making, March 2017 How are we doing under our current system. (these are two year numbers. I think 2015 and 2016)

Bail Decisions by Type (Simple) * Donnelly, Ellen and John MacDonald; Extension of Delaware Disparity Study: Assessing Bail Processes and Pretrial Decision-Making, March 2017 Type of Bail Cases   Number Percent Money Required 29,368 38.7% Money NOT 46,544 61.3% Total 75,912 100.0% How are we doing under our current system. (these are two year numbers. I think 2015 and 2016)

Detention Rates by Bail Type * Donnelly, Ellen and John MacDonald; Extension of Delaware Disparity Study: Assessing Bail Processes and Pretrial Decision-Making, March 2017 Note one of the big problems with using money bail for public safety 20% of the people who have cash bail set never hit the prison 25% of the people with secured cash are also released that day.

Release Rates by Bail Type * Donnelly, Ellen and John MacDonald; Extension of Delaware Disparity Study: Assessing Bail Processes and Pretrial Decision-Making, March 2017 Once they are in DOC custody 66% of the people are able to be released eventually – the cash bail just means they have to wait to raise the money – not keeping people safe – just keeping them in until they get the money together. So a defendants access to money is what decides if they are released or not. How many people considered that as the factor they relied on when deciding bail earlier?

Increase in 2-Year Recidivism “Low Risk Defendants” *Laura and John Arnold Foundation; Lowencamp, VanNostrand, Holsinger, The Hidden Costs of Detention. So what? Why do we care about how long it takes people to be released? Because every day a low risk arrestee sits in detention they become more likely to recidivate in the next two years. This study compared low risk arrestees who were released immediately to those who were released eventually and concluded that those who were detained for even relatively short periods of time fared worse in the long run.

Case Outcomes Conviction (%) Guilty Plea (%)   Overall Detained Released Conviction (%) 67.45% 80.06% 60.59%*** Guilty Plea (%) 59.26 % 73.52% 51.50%*** Incarceration Sentence (%) 13.07% 26.94% 5.53%*** Incarceration Sentence Length (in Days) 555.99 701.81 169.52*** Donnelly, Ellen and John MacDonald; Extension of Delaware Disparity Study: Assessing Bail Processes and Pretrial Decision-Making, March 2017 Why else? Because in Delaware pretrial detention is one of the primary factors correlated with case outcomes.

Delaware’s Detention Population A Snapshot – 10/27/17 715 People Eligible for Release on Bail – no other matters holding them How much? 75% - less than $100,000 59% - less than $50,000 43% - less than $20,000 20% - less than $5,000 Assuming 10% bail bond 144 people being held for want of $500 or less.

The Two-Part Problem We are holding people we intend to release. Those without financial means, often on low-level charges. We are releasing people we intend to hold. Those with access to money, who pose a real risk to public safety. Any system that consistently results in something other than what you reasonably intend is - by definition - a failure.

Implementing Systemic Change Discussion Points: Work thus far has been in developing strategic plan and working subcommittees to implement goals. Stress Collaboration

Characteristics Effective Pretrial Systems Share Risk Assessment Preventive Detention Enhanced Pretrial Supervision Discussion Points Data Driven: Initial Challenge in accurately assessing current functioning of system. While addressing those issues conducted national research to learn more about effective pretrial strategies. The SMART Pretrial Policy team identified three pillars of effective pretrial systems Pretrial Assessment Tool: Cornerstone of risk based system. Sorts people into categories of likelihood to fail to appear and likelihood of committing new criminal activity. Appropriate least restrictive conditions of release. Presumption of release for those who can be released safely in the community with the imposition of legal and evidence based conditions that are narrowly tailored to provide a reasonable assurance that defendants will appear in court as directed and remain law abiding. Preventative Detention: In recognition that some defendants present unmanageable risk that they will fail to appear or commit new crimes if released into the community regardless of conditions of release, system partners provide legal mechanisms to detain the relatively few defendants who cannot be safely released.

Infusing Risk Assessment Into Every Level Of The Process

Pretrial Assessment Tool Designed to statistically predict likelihood of Court appearance New criminal activity Built on and pretested using Delaware data. Discussion Points One factor to consider, should never be binding authority Social science measures require predictability accuracy at 70% to be considered “good” instrument Must be validated post implementation – cannot validate instrument prior to implementation

DEL-PAT Any pending case, Any prior convictions, DEL-PAT Risk Factors Any pending case, Any prior convictions, Any prior misdemeanor arrests in past 2 years, Any prior probation supervision (post conviction), Age at first arrest (≥20 or ≤19), Any prior failures to appear, Any prior probation supervision (post conviction) in the past 10 years, Total number of prior FTAs in the past year, Current case alleges at least one charge of larceny or stolen vehicle. Discussion Points Tool Developed by independent researchers contracted by the Criminal Justice Council. Researchers worked in collaboration with DELJIS and SAC to create database from 44,281 cases. Only defendants with an opportunity to fail pretrial (those released at some point in the time frame) were included. Two random representative samples of 2,000 cases each were selected. One sample used to develop the tool, one to test the tool. (1) Both gender and race were controlled for when examining potential risk factors and risk assessment scales. (2) Risk factors demonstrated multi collinearity were not included in the final model – the strongest factor was included and the other excluded. The tool scores in the “good” range in pre implementation modeling.

Initial Presentment Explored expanding use of summons. Concluded we needed to improve current outcomes Exploring whether specific offenses are driving higher rates of pretrial failure. Created Draft Initial Presentment form Not a risk assessment Designed to provide as much information to magistrate Particularly to address cases alleging intimate partner violence

Delaware 2015 Warrant & Summons Summons Only Represents 18% of all criminal arrests 33% failed to appear & 26% commit new offenses while released pretrial Detention Rate 80% released 20% detained New Criminal Activity 24% arrested for NCA 76% no pretrial arrests Failure to Appear 22% failed to appear 78% appeared as directed Discussion Performance Outcomes Subcommittee Established baseline mission critical data measures First time ever accurately calculated the true pretrial detention population in DOC First time accurately calculated the rates of pretrial detention, failure to appear, and new criminal activity and pretrial caseload ratio. Established committee to develop interfaces to report on average length of stay, number of defendants released by release type and condition. Also, identified the charges that lead to highest rates of failure for summons (larceny, CDS); working with law enforcement to mitigate risk for those offense types.

Legislative Analysis Recommendations for modifications to current statutes. Discussion Points: Completely collaborative Seeks consensus from all stakeholders Drafted first round of legislation in HB 204

HB 204 Emphasize individualized decisions; Use an empirically developed assessment tool; Redefine “bail” to mean pretrial release; Encourage release under appropriate conditions; Expand standing to petition the court to modify conditions; Increase possible sanctions for violations, Provide Pretrial Services with the authority in exigent circumstances to issue an administrative warrant for violations of conditions of release.

Up Next?

In the Works Pilot and Implementation of DEL-PAT Updated Policy Directives Decision – Making Framework Initial Presentment Form Dashboard of Performance Indicators and Mission Critical Data Discussion Points: DEL PAT implementation anticipated in January of 2018. Must be programmed and piloted Current training and education modules are in development Working with Court Administrators to develop appropriate training program (time, method) Policy Directives and Decision Making Framework Being addressed by legislative committee with input from law enforcement and victims community Distribute Yakima as model --- Just a model though, our factors will reflect our values. Goal to have directives and Framework completed by October 31.

Initial Presentment Finalizing initial presentment form, Working to involve law enforcement in pretrial decision process. Initial Presentment Form Collaborative Effort with initial presentment subcommittee, law enforcement, domestic violence community, and courts. Form is designed to provide additional information for judges to use in setting appropriate least restrictive conditions of release.

Performance Outcomes Create pretrial dashboard Report recommendations to improve pretrial data reporting capacity Prepare monthly and year to date updates on mission critical data points. I

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