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Pretrial Justice

The Purpose of Bail

1. Protect the integrity of the court process

2. Protect the public 3. Protect against

punishment prior to conviction

Broken from the Beginning

“In too many instances, the present system . . . neither guarantees security to society nor safeguards the rights of the accused. It is lax with those with whom it should be stringent and stringent with those whom it could safely be less severe.” - Arthur L. Beeley, The Bail System in Chicago (Chicago: University of Chicago Press, 1927: reprinted 1966)

Bond Schedules • Sometimes called

“standard bond”

• The predominant mechanism for assigning bail according to the National Pretrial Justice Survey

Defining “Effective” Bail Decisions

“Effective bail decisions would foster the release of as many defendants as possible before trial, while maintaining suitably low failure to appear and rearrest rates.”

(John Goldkamp and Michael Gottfredson, Policy Guidelines for Bail: An

Experiment in Court Reform.)

Bond Schedule Risk Assessment

Offense Severity

Bond Amount

Bail Discrepancies Among California Counties

$0

$5,000

$10,000

$15,000

$20,000

$25,000

$30,000

Alameda El Dorado Fresno Los Angeles Orange Sacramento San Bernadino

San Diego San Francisco Tulare

Presumptive Bail Amount for Possession of a Controlled Substance

Delivering a Check with Insufficient Funds

Most people in California jails have not been convicted of a crime

21 counties have pretrial populations of over 70%

7 counties with pretrial population of 50% or lower

Case Law • Stack v. Boyle (1951)

• 12 men arrested for the same crime • All received the same unusually high bail of $50,000 • Court determined that bail must be individualized • Still only for appearance

• U.S. v. Salerno (1987) • In wake of the Bail Reform Act of 1984 • Inclusion of danger in bail decision

“In our society, liberty is the norm, and detention prior to trial or without trial

is the carefully limited exception.” -Chief Justice William Rehnquist U.S. V. Salerno, 481 U.S. 739 (1987)

COSCA White Paper (2012) • “…Economic status (is) a significant factor in

determining whether a defendant is released pending trial, instead of such factors as risk of flight and threat to public safety.”

• “In short, ‘for the poor, bail means jail.’”

Implications of Bail

• 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

National Symposium Recommendations • Expand the use of citation releases

• Risk assessment in place of bond schedules

• Prosecutorial review of all cases prior to initial appearance

• Defense counsel at initial appearance

• Trained Judicial officers presiding at the initial

• Existence of pretrial services program

• Preventive detention

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

Risk Assessment Auto Insurance

• Age • Distracted driving • Peer(s) in vehicle with

driver • Low driving skills • Low compliance with

traffic laws

Risk Mitigation Auto Insurance

• Drivers education

• Restrict nighttime driving

• Prohibit peers as passengers

• Strict enforcement

• Seat belts, texting, etc.

Risk Assessment Pretrial Justice

• Statistically measures probability of success/failure of the two factors to consider for bail: • Appearance in court

• Community safety

How Does it Work? • 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 • Other pending cases

• Criminal history

• Failure to appear history

• Residence

• Employment

• History of substance abuse or mental illness

Pretrial Risk Mitigation

• Case manager supervision

• GPS supervision

• Drug testing

• Stay away orders

• Curfew

• Treatment/therapy

• Preventive Detention

Pretrial Outcomes • In 2011 Pretrial risk assessment was legislatively mandated to

preform a risk assessment for every criminal defendant in Kentucky.

• Kentucky has the only statewide pretrial services system in the nation

• Only site where statewide pretrial data is available

Pretrial Outcomes in Kentucky

• Overall Release rate: 70% • Non-financial release rate: 66% • Public safety rate: 92% • Appearance rate: 91%

DC Pretrial Justice Outcomes

• Overall Release rate: 85% • Community safety rate: 88% • Appearance rate: 88%

Public Opinion

0% 10% 20% 30% 40% 50% 60% 70% 80%

Support Undecided Oppose Don't Know

Risk Assessment Instead of Cash Bail Bonds

Question: 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 [drug use history, mental health, employment status, residency, and community ties] or [the charge in question, criminal history, any warrants or previous failures to appear for court]. 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 to use risk assessment instead of cash bail bonds to determine whether defendants should be released from jail before trial, or are you undecided? [IF SUPPORT/OPPOSE] And do you feel that way strongly, or not-so strongly?

33% Think Risk Assessment is Happening Now

Yes 33%

No 37%

Don't Know 30%

Question: 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 suspect’s 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. Do you think a system like the one proposed already exists?

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