1. Colorado Association of Pretrial Services April 11, 2013 Penny Stinson

2. 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

3. Legal and Evidence-Based Practices and National Standards
MODULE 1
Legal and Evidence-Based Practices and National Standards

4. FREEDOM

5. THE PURPOSE OF BAIL
Protect the integrity of the court process
Protect the public
Protect against punishment prior to conviction

6. 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.”

7. 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 8th Amendment.”

8. ABA STANDARD
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.

9. COLORADO LAW ON FACTORS TO CONSIDER
Section
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

10. ABA Standard 10-4.2/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.

11. 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

12. 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 non-financial conditions are not sufficient to reasonably assure appearance.
Financial conditions should not be used to protect the safety of the community.

13. 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

14. INCORPORATING EVIDENCE INTO THIS LEGAL FRAMEWORK
Actuarial risk assessments
Supervision levels
Court date reminders

15. 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

16. RISK ASSESSMENT AUTO INSURANCE
Age
Distracted driving
Peer(s) in vehicle with driver
Low driving skills
Low compliance with traffic laws

17. RISK MITIGATION AUTO INSURANCE
Drivers education
Restrict nighttime driving
Prohibit peers as passengers
Strict enforcement:
Seat belts
texting, etc.

18. RISK ASSESSMENT PRETRIAL JUSTICE
Statistically measures probability of success/failure of 2 of the factors to consider for bail:
Appearance in court
Community safety

19. PRETRIAL RISK MITIGATION
Case manager supervision
GPS supervision
Drug testing
Stay away orders
Curfew
Treatment/therapy
Preventive Detention

20. 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.

21. 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.)

22. 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.

23. 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.

24. 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

25. Case Study - Kentucky
In 2011 Pretrial risk assessment was legislatively mandated to perform a risk assessment for every defendant in Kentucky.

26. PRETRIAL OUTCOMES IN KENTUCKY
Overall Release rate: 70%
Non-financial release rate: 66%
Public Safety (no new arrests): 92%
Appearance rate: 90%

27. 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.

28. 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

29. 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

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

31. 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.

32. 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.

33. 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.

34. 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.

35. SUGGESTED PERFORMANCE MEASURES
Response to Defendant Conduct: Frequency of policy-approved 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.

36. 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.

37. 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.

38. Public Opinion And System Support
MODULE 3
Public Opinion And System Support

39. VIDEO CLIP

40. 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.

41. 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.

42. NATIONAL SURVEY RESULTS: RISK ASSESSMENT AND RISK MANAGEMENT
Less Important
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?

43. RISK ASSESSMENT: EFFECTIVENESS
Protecting Community Safety
Preventing Flight and Ensuring Appearance in Trial
+58
+53
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?
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?

44. 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?

45. CALL FOR PRETRIAL REFORM SINCE 2010

46. 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 cost-effectiveness and preserve safety needs, as well as due process.”

48. 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,… ”

49. NATIONAL SHERIFF’S ASSOCIATION
“…The National Sheriffs’ Association supports and recognizes the value of high-functioning 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.”

50. 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…

51. 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...

52. 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.”