courts today february/march 2016

February/March 2016 Vol. 14 No. 1

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Sentencing Reform:

Juvenile Justice, Drug

Policy & More

High-techCourtrooms

Risks & RewardsOf Pretrial Release

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V O L U M E 1 4 N U M B E R 1

F E B R U A R Y / M A R C H 2 0 1 6

F E A T U R E S

4 Tech Talk

34 Ad Index

D E P A R T M E N T S

10 Equipping High-tech Courtrooms...Considerations

18 Workflow Software Solutions:Document Management, E-filing &Beyond

25 Sentencing Reform: How LegislationIs Changing Policy

31 Risks & RewardsOf Pretrial Release

Publisher & Executive EditorThomas S. Kapinos

Assistant PublisherJennifer Kapinos

EditorDonna Rogers

Contributing EditorsMichael Grohs, Bill Schiffner

G.F. Guercio, Kelly Mason

Art DirectorJamie Stroud

Marketing RepresentativesBonnie Dodson(828) 479-7472

Art Sylvie(480) 816-3448

Peggy Virgadamo(718) 456-7329

is published bi-monthly by:Criminal Justice Media, Inc

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PUBLISHERS PAGE

T echnology is a powerful tool that can allow courtsto meet essential purposes and responsibilities,even while severe economic pressures reduce

court staff, reduce hours of operation, and even closecourt locations.

It is for this reason we have enlisted the service ofveteran court technology consultant, Jeff Nadler, toshare with us his 25 years of extensive expertise aboutcurrent and future trends in court technology.

Mr. Nadler started his career with the Arizona

Supreme Court and soon realized there was a real needfor various forms of technology to help courts savemoney, streamline operations and ensure the dailyfunctions of the courts to have optimum productivity.This realization led to the creation of Court TechnologyConsultants in 2010, of which he is president. Over theyears CTC has been of assistance to courts in facilitatingtheir transition to a more productive operation with theintroduction of technologies such as e-filing, case man-agement systems and integration, digital recording, andCJIS/IJIS. This period also marked the expansion of cal-endaring, digital evidence presentation, multi-media,strategic planning, workflow management, video con-ferencing, and web-based applications, remote monitor-ing, centralizing recording, and automatic redundancy,as well as numerous advancements in court security.

Another vital development over the last few years isCourt Mandated Offender Education. It providesoffenders the 24/7 ability to take court mandated classessuch as DUI, traffic, anger management, parenting, anddomestic violence to list just a few of the dozens ofclasses that can be offered by a court. These not onlysave the court money but can also add a revenue shar-ing program, diverse content management, full analyt-ics, and the ability to cater to rural areas.

Another huge development for courts, remoteappearances by audio and/or video, make routine, non-evidentiary pre-trial appearances more cost effective,efficient and simple for judges, court staff, attorneys andother participants. This technology once again savestime and money, and provides efficiency for thousandsof courts.

This is just a brief introduction of the potential of TechTalk coming in the next issue of Courts Today. We encour-age your questions and feedback; feel free to communi-cate with us about topics of interest to your court.

Tom Kapinos, [email protected]

New Column Tech TalkTo Launch Next Month

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BY MICHAEL GROHS, CONTRIBUTING EDITOR

Thelegal system, saysFred Lederer,director of the

Center for Legal and CourtTechnology (CLCT), is in a period ofdrastic change. More and more,technology is having an impact onthe way courts operate. As a resultof budget cuts, updating, moderniz-ing, and other factors, technology isbeing used to replace or enhancepersonnel and to streamline effi-ciency. Location has become less ofan issue, and first appearances cannow be conducted remotely, thussaving time and money. Witnesstestimony and evidence presenta-tion can be conducted using audiovisual technology in remote and var-ied locations. CLCT has even experi-mented with using a remote juror.Evidence can be viewed in 3D, andeven potentially using hologramtechnology. The options seem limit-less, but there are factors to consider

when using and implementing suchtechnology in a courtroom.

In the beginning, says Lederer,there were large screens for display-ing evidence. Usually the judge willview evidence displays through ascreen on the bench, in which casehe or she might not be able to mon-itor the jury and determine the psy-chological effect the presentationhas on jurors. The concerns that theevidence might be prejudicial couldarise. For example, without technol-ogy, if a jury verbally heard that avictim suffered 40 stab wounds, theymight grimace or nod understand-ingly but still remain neutral overall;however, if there was a large screenand an attorney showed the photosof the victim’s body, an otherwiseneutral mind might be horrified andstart thinking that the defendant is amonster. A potential similar situa-tion was narrowly avoided in a trag-ic child molestation case in whichthe evidence would have been pre-

sented in such a way, relatesLederer. The situation was fortu-nately avoided when the defendantpled guilty.

Showing such evidence in 3D isanother concern. While the technol-ogy is truly impressive, it also mightcause the jury to unfairly considerthe sheer horror of the crime andarrive at a prejudicial outcome.CLCT showed the first 3D evidencein an experimental trial. The evi-dence presented was a brick and abaseball bat. The brick, says Lederer,was more imposing in D. The edgeslooked more jagged than they actu-ally were, so the question arose: Didit look more dangerous than it was?Rule 403 states: “The court mayexclude relevant evidence if its pro-bative value is substantially out-weighed by a danger of one or moreof the following: unfair prejudice,confusing the issues, misleading thejury, undue delay, wasting time, orneedlessly presenting cumulative

Technology inthe CourtroomThe options seem limitless but there are factors to consider....

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evidence.” All of these factors comeinto play when considering whattechnology to adopt.

There is also the matter that tra-ditionally, says Lederer, evidencewas not made public and has neverbeen shared with the audience. (Hefurthers that of the thousands ofinterviews of judges CLCT has con-ducted, so far only two have report-ed that they have had members ofthe audience stand up and inquireor demand elaboration about theevidence.) The issue of the largescreen was brought to light whenone morning a judge was reading anarticle in the paper about a case overwhich he was presiding. He noticedthat the story was particularly accu-rate, more so than should be expect-ed. That was when he realized thatreporters could now see the evi-dence. One consideration for courts

A remote witness during an experimental(simulated) child slavery prosecution atthe CLCT courtroom. The HonorableBarbara Rothstein presides.


February/March 2016


is whether or not they wish to allowthis.

Tablets and other devices arebecoming more and more a staple inthe courtroom. They offer the pos-sibility of “a courtroom in a box.”Steve Bogart, IT Manager/RSM atWolfVision, notes that they evenhave an industry term for this—BYOD. In fact, courts are increasing-ly encouraging lawyers to presentevidence electronically using theirown device. While there have beenlarge screens to present evidence,courts have increasingly moved tosmall, flat screen monitors (usuallyone for every two jurors). There arecertainly benefits. Tablets are inex-pensive and can be either handheldor mounted. There is also the mat-ter, though, that there may be visionissues, and 8 1/2 x 11-inch text canbe very dense. There is also the mat-

Personal devices are becoming moreand more a staple in the courtroom.This has been referred to as BYOD,or bring your own device.


February/March 2016


ter that the images will be smaller.(Of course, in that case the tabletcan usually be held up to the eyesand may or may not be able to bemade larger by zooming in.)

Obviously no one wants jurorssurfing the web, and a considerationcourts have to make is what materialwill be allowed and how it will beviewed. Currently the U.S. DistrictCourt in Philadelphia presents evi-

dence using tablets and video stream-ing. In their case, the images arestreamed to tablets that can do noth-ing else. (In Los Angeles, the evi-dence is pre-loaded into the tablet.)There are other considerations, saysLederer. Among them is that if thejury is looking at the screen, they arenot looking at the witness, so thedecision as to whether or not tomount the tablets so the jury will befacing the witness stand or have themhandheld will need to be made. (Thisis what the Philadelphia Courtsdoes.) The potential is clear, and, asLederer says, CLCT “continues toexperiment.”

The placement of technology is initself a major consideration. Ideally,for remote appearances and witnesstestimony, the subject should appearas normal as possible in regards tosize and placement. (The preferenceis that the subject should appear thesame size and in the same place as apresent witness would.) The moni-tor should be facing the judge. If ajudge thinks a defendant is lookingpast them or over their shoulder, itcan have a discomforting and disso-ciative effect. Cameras, says Lederer,should be right above the person.

When CLCT was originallydesigned, there was a camera overthe judge, but not directly on thewitness stand. It was 19 degrees tothe side, and the witnesses thoughtno one was looking at them. Thatpart, says Lederer, has been cured,but it is something courts must keepin mind. A major study usingremote bail hearings in Chicagofound that people appearing

remotely were getting higher bails.CLCT “strongly suspects” that itwas a result of camera placement.

Issues To ConsiderWhen procuring technology,

there are elements to consider andquestions to ask. Lederer advises,“Be totally sure you know what youneed rather than what you think youneed.” Technology changes quickly,and “we are in a period of drasticchange.” He points out that whilehaving a highly-skilled technologistsounds like the natural step, it can bedisastrous. The technologist, he fur-thers, will give the best solution, butthey may not give the best courtsolution. There are legal complianceaspects to address. Each court has itsown culture, and each court willneed to consider what will satisfytheir technology needs subject to lawand culture. It will also need to be“future-proof.” Questions thatcourts should ask before procuringtechnology include whether or notthey are ready to use wireless tech-nology to convey the signal. Arethere concerns about confidentiality?Can other people pick it up? Does itmatter? How much bandwidth does

the court need? Are you looking forpeople to install the devices, or areyou prepared to do it yourself, and,among the most important, if theyare looking for advice, do the onesdispensing the advice have courtexperience?

Some courts are wired well, someare not, and some may not be sure ifthey are or not. There are organiza-tions out there to guide courts inprocuring technology or even to rentit out on a one-time basis. One orga-nization that can help with some ofthese technology concerns is King ofPrussia, Pa.-based Aquipt TrialServices. Aquipt specializes in court-room technology assistance and pro-vides IT support, expertise and equip-ment rentals on a national level.“Technology,” notes Rose Rykowski,director of sales, “goes out of datequickly, and everyone requires differ-ent things.” Aquipt tailors their ser-vices based on needs of a case, whatis allowed by court order, as well asinfrastructure of a courtroom.

Among the issues that courtsneed to consider—especially oldercourts—is circuits and power. If acourthouse has an antiquated powercircuit, for example, equipment fail-ure during proceedings is a proba-bility. Aquipt circumvents this prob-lem by offering to survey a court-room before a trial begins so tech-nology recommendations are basedon what is best for the size of theroom and what equipment comple-ments available power. Sometimescourts need to upgrade their powercircuits as one way to avoid disrup-tion during trial. Aquipt does its duediligence for clients, notesRykowski, by scoping out space,preparing for the unexpected andrelying upon 25 years of experiencein setting up courtrooms.

For more information on AquiptTrial Services, see www.aquipt.com,call 877.591.5141 or e-mail [email protected].

Tablets are being used by attorneys in the courtroom todisplay documents, evidence,even streaming video.


February/March 2016


BY BILL SCHIFFNER, CONTRIBUTING EDITOR

Scott Bade, president at ImageSoft,Inc. says, “Courts are struggling tocompete for precious IT resources andare turning to the Cloud for fasterdeployments, lower costs and higherfunctionality. Courts, like commercialmarkets, are realizing that they can-not afford to be in the software devel-opment business. Twenty sixteen willbe the year of the Cloud in courtswith products like Office365 leadingthe way.”

“Using technology effectively iskey for many aspects of a successfuldocument management workflowincluding speeding juror processingand management as well as facilitat-ing a positive juror experience, for

example,” adds Tessa Prophet, mar-keting specialist at Jury Systems Inc.

More IntegratedSolutions

Phil Hatton, vice president, JusticeSolutions Manager at XeroxGovernment Systems, LLC, saysintegration of these systems is thekey for a more streamlined workflow.“Our Xerox court case managementsolutions include an integrated con-tent management component withinour base offerings or our CMS solu-tions can be easily integrated with acourt-selected third party contentmanagement system. With our Xerox

AgileCourt solution, the ApacheJackrabbit repository is included andour Xerox Contexte solution comescomplete with built-in database con-tent management functionality,” hereports.

Going MobileGary Dower, president at Judicial

Systems Inc., points out that courtshave long been able to capture digi-tal images of documents by scanningpaper documents and extractingspecific data elements in the process.He says that Judicial Systems, Inc.has provided document manage-ment with Advanced Data Extractionto court jurisdictions nationally as acomponent of its Jury ManagementSystem for more than 20 years.

“Today’s mobile devices are tak-ing the inputting of information to anew level by repurposing their built-in cameras for use as content-entrytool,” Dower explains. “Image cap-ture from any device and from any-where will grow to become essential.In the future, scanning and inputtingdocuments while sitting by a tradi-tional scanner will not cut it by itself.Image capture will now need toinclude the use of mobile devicessuch as smartphones and tablets withbuilt-in cameras. We already see ahuge application for this with mobilebanking and check processing.”

“Judicial Systems’ DocumentManagement System coupled with

Workflow Software Solutions: Document Management, e-Filing and Beyond…

Into the Cloud

JUST ABOUT EVERY COURT SYSTEMtoday utilizes some sort of document workflow process. Whether

that process is limited to a single individual or multiple people, a

series of steps is completed to formulate the workflow process.

Document workflow can consist of an invoice, order processing,

email, snail mail, or other document, and it occurs every single day

in every single business. Once the realization occurs regarding how

often document workflow occurs each day, systems administrators

begin to consider ways to improve and streamline the document

workflow process to maximize time and cost savings. Records and

document management are at the heart of most courts’ business

processes. These two elements are directly related; document man-

agement focus on how courts obtain/acquire documents while

records management focuses on care and storage after acquisition.

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the functionality of mJuror, the tex-ting component of Judicial Systems’JMS, now adds tremendous valueto the Document Managementprocess,” he adds.

“The public is trending towardsmobile first services, utilizing desk-top and web services, secondly.Judicial Systems integration betweenits Document Management Systemand its mJuror Texting System willinsure that jurisdictions are ready toaccept the eventual mobile first busi-ness strategy regarding DocumentImaging and Management whileproviding citizens a quality mobileexperience,” Dower concludes.

E-Filing CapabilitiesContinue to Grow

E-Filing software is another areathat is on the rise. The solution pro-vides a secure, easy-to-use electron-ic filing system that streamlines andmanages the two-way flow of infor-mation among attorneys, clerks,court personnel, and judges.

Sue Humphreys, CourtView’sdirector, Industry Solutions, notes,“As e-filing solutions gain steam,we’re seeing a real shift where clerksare more involved in facilitating andquality-checks rather than heads-down data entry. That’s a greatthing for caseflow overall. And withe-filing standards in place, we’llsoon start seeing even greatermobility—filings, alerts, updates—all on your smart device from wher-ever you happen to be.”

“E-filing creates a tipping point tocreating an electronic court, “ agreesMichael Kleiman, director of market-ing for Tyler’s Courts & JusticeDivision. “Once filings come intothe system as electronic documentsit becomes much easier to createelectronic case files and automatedprocesses. Integration between e-Filing, and case and document man-agement allow courts to save money,free up space, and be more respon-sive to constituents,” he adds.

Document Classification“Document classification is at the

heart of any system that capturesand stores documents. E-filingattempts to place the responsibilityof coding on the submitter, howeverin the majority of cases, court clerkstaff still inspect documents andcorrect docket codes to reflect whatlocal understanding of the docu-ment is,” says Henry Sal, presidentat Computing System Innovations.“We've taken some of our technolo-gy and it has allowed us to redactprivacy information and create iclas-sify. IClassify for Courts upgradescourt docketing workflows byreplacing manual efforts withmachine learning technology thatincludes both linguistics and seman-tics,” he adds.

Here’s a look at some of the latestdocument management and e-Filingsoftware solutions for the courts:

MOBILE MANAGEMENTSOLUTIONS

Judicial Systems’ DocumentManagement System coupled withthe functionality of mJuror, the tex-ting component of Judicial Systems’JMS, now is reported to add tremen-dous value to the DocumentManagement Process. Documentimages and content may now beentered into the document workflow

within the JMS by the use of smart-phones/tablets rather than by docu-ment scanners alone. Potentialjurors may take picture of aQualification Questionnaire, Medical

Affidavit, etc., with their smartphoneand text the picture to mJuror, which,in conjunction with the DocumentImaging System, verify that the formis complete and acceptable. Once thedocument is accepted, the potentialjuror will be notified via text. www.judicialsystems.com, 1.800.205.4068

PRETRIAL MANAGEMENTWith strict guidelines in place for

processing and preparing defen-dants for trial, Tribridge Pretrial360provides the technology necessaryfor probation, parole and court usersto easily and securely enter andtrack data. It’s also optimized forinformation sharing and improvingaccountability to enhance publicsafety. Built on Microsoft DynamicsCRM, these solutions allow for moreinformed decision-making at each

phase in the pretrial process, fromfirst contact with law enforcementthrough adjudication. Three distinctmodules focus on different areas ofPretrial Management: DefendantManagement, Supervision CaseManagement, and Risk Assessmentsto help jurisdictions move fromresource-based to risk-based baildecision-making process.

www.tribridge.com, 1. 877.744.1360

DIGITAL SOLUTIONSImageSoft delivers a unique inte-

grated digital solution for both courtsand prosecutors that runs in theCloud. The ImageSoft JusticeTech

solution provides Dynamic CaseManagement (CMS), EnterpriseContent Management (ECM), and


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the TrueFiling e-filing platform in asingle hosted platform at an afford-able subscription price. The solutionsupports all major case types and forcriminal cases it offers complete digi-tal integration of law enforcement,the prosecutor, and the court.www.imagesoftinc.com, 1.888.315.3901

VIRTUAL COURT RECORDS CourtView’s JusticeFiling System

is a launchpad for virtual courtrecords. Whatever the source—attorneys, pro se, other agencies, ora judge—JusticeFiling lets youreceive, review, route, accept, asso-ciate, and store documents efficient-ly and according to your rules andflow. The filer portal provides quickaccess to personal queues and statusupdates, with automatic notifica-tions as filings progress. JusticeFilingeasily integrates with CourtView’s

ShowCase iDMS or third-party doc-ument systems. Whether they areincoming or outgoing, documentsare always available online to thosewith access permission. DMS securi-ty controls who can markup/anno-tate or edit documents and whichdocument versions or “layers” areviewable by whom.

www.courtview.com, 1.800.406.4333

OPTICAL CHARACTERRECOGNITION

Odyssey provides tight integra-tion between e-filing and case man-agement, including document man-agement. This generates efficienciesby creating electronic queues foraccepting and routing filings.

Optical Character Recognition(OCR) capabilities enable users tosearch electronically filed docu-ments for words and phrases.Odyssey File & Serve is the solutionof choice for 11 statewide e-filingimplementations, and Odyssey CaseManager is being used in more than600 counties.

www.tylertech.com, 1.800.431.5776


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WEB PORTAL FOR E-FILING

FullCourt e-filing provides a webportal for filing documents with thecourt electronically, creating casesfrom the filings, and providingnotices to filers and parties to thecase. Payment of filing fees is fully

integrated through its ePaymentsolution, CitePayUSA and provides

for seamless recording of financialtransactions with the court casemanagement system, FullCourtEnterprise. Once filings are submit-ted, clerks can review and processall filings within FullCourtEnterprise.

www.justicesystems.com, 505.883.3987

CONTENT MANAGEMENTFUNCTIONALITY

The Xerox AgileCourt solution’sApache Jackrabbit repository isincluded in the Xerox Contexte solu-tion. It comes complete with built-in database content managementfunctionality. Both solutions caneffectively man-age all types ofrequired content(audio files, video clips, documents,fingerprint, photographs, etc.). Ifdesired, the court can automatically

store documents generated fromwithin either CMS, store scanneddocuments or store electronicallyfiled documents within the ApacheJackrabbit repository using ourbuilt-in database content manage-ment functionality. http://xerox.com/justice, 1.877.414.2676

MANAGEMENTSOLUTIONS

Thomson Reuters is committed toprovide customers with unrivaled




solutions that integrate content,expertise and technologies, the firmsays. C-Track CMS delivers just that,offering courts customizable man-agement solutions configured tohow a court functions. Their suite ofprograms features the next genera-tion of document management ande-filing solutions.

www.thomsonreuters.com,1.877.923.7800

WEB-BASEDMANAGEMENT SOLUTION

ECourt provides a documentmanagement system as well asscanning, indexing and storage ofpaper-based and electronic docu-ments. All documents, regardless offile formats (scanned images andelectronic files such as PDF, Word,Excel, PowerPoint, Visio, text, audio,video), are easily stored, managed,

and retrieved from within eCourt fora single, centrally managed reposi-tory that has the necessary securityand automation features to supportthe business. When a document isgenerated by eCourt, it is automati-cally associated to the case andsaved to the repository.Additionally, when the user has toprovide edits prior to saving thedocument and sending it, they canupload it to eCourt using theMicrosoft Word ribbon tool bar andall revisions are saved.

www.journaltechnologies.com,1.877.587.8927

DOCUMENTMANAGEMENT SYSTEM

The Tybera CEDAR DocumentManagement System (DMS) isdesigned specifically for courts.Many courts are moving away fromfull-featured DMS systems becauseof the high cost. The cost to licenseand maintain most DMS systems is

based on the number of users orinteractive connections. When an e-filing system is connected to a DMS,each account actively using the sys-tem requires one of the interactive


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connections. The more attorneys,Pro Se filers, and court employeesusing the system, the more connec-tions to the DMS are mandatory.

www.tybera.com, 801.226.2746

DOCUMENTCLASSIFICATION

IClassify for Courts improvescourt docketing workflows byreplacing manual efforts withmachine learning technologywhich includes both linguistics andsemantics. It is the examination oflanguage form, language meaning,and language in context. IClassifyis actually able to resolve the ambi-guity of expressions and the rela-tionship of words in a body of text.This greatly improves the precisionof document classification and atthe same time allows distinguish-ing between important and irrele-

vant features in text.www.csisoft.com, 407.598.1825

JURY SOLUTIONSWith its suite of JURY+ Solutions,

the entire jury process is easier forboth jury staff as well as prospectivejurors. Jurors may use JURY+ WebSolution to go online to qualify/dis-qualify themselves, request a post-ponement, or update information.Once submitted, it is archived in thecore JMS, JURY+ Web Generation. Ifjurors prefer to mail in their paper-

work, JURY+ Imaging Solution allowsspecific data fields to be extractedfrom the form and updated into thedatabase based on the court’s rules.Information is indexed with thejuror’s record and retained in oursearchable document archive.

www.jurysystems.com, 1.800.222.6974

ID SHIELDExtract Systems developed the ID

Shield to meet the specific demandsof government and public organiza-tions to automatically capture andredact information from their record-ed documents. ID Shield removessensitive data from electronic orpaper-based content permanentlyand securely. The system’s technolo-gy was designed to seamlessly inte-grate with all case management sys-tems and other workflow solutions.www.extractsystems.com, 608.821.6520




he U.S. has more peopleincarcerated than any othernation with 2.2 million peo-ple in prison or jail and 4.7million under communitysupervision on probation or

parole. Criminal sentencing trendsover the last 30 years have resultedin a 500% increase in our nation'sprison population. Much of thisincrease is due to “get tough oncrime” laws that were enactedthroughout the 1980s and 1990s.

In 2014 both state and federallegislative bodies began examiningwho goes to prison and for howlong, preserving costly prison spacefor the most dangerous offenders.Much of the focus has been onoffenders that went to prison duringthe “war on drugs,” often beingincarcerated for years for low-leveloffenses.

Sentencing policies of this eraresulted in dramatic growth in

incarceration for drug offenses.Since the official start of the so-called drug war in the 1980s, thenumber of Americans incarceratedfor drug offenses climbed from41,000 in 1980 to nearly a half mil-lion in 2014, according to theSentencing Project. Furthermore,sentencing laws such as mandatoryminimums keep many people con-victed of drug offenses in prison forlonger periods of time: in 1986, peo-ple released after serving time for afederal drug offense had spent anaverage of 22 months in prison. Incontrast, by 2004, time served for afederal drug offense averaged 62months in prison.

At the federal level, people incar-cerated on a drug conviction makeup half the prison population. At thestate level, the number of people inprison for drug offenses hasincreased ten-fold since 1980. Mostof these people are not high-level

actors in the drug trade, and mosthave no prior criminal record for aviolent offense, according to theSentencing Project.

Policy has been shifting andrecent years have seen steadychanges to the sentencing policy fordrug crimes. The changes includediverting some offenders to commu-nity supervision and treatment,adjusting drug penalty thresholdsand relaxing mandatory minimumsentences.

In one big change, effective lastNovember, 6,000 federal prisonerswere released early due to drugguideline reductions put into effectby the United States SentencingCommission, an independentagency in the judicial branchcharged with setting federal sen-tencing guidelines. The guidelinesnot only made changes to offendersbeing sentenced under new,reduced guidelines but the change

BY DONNA ROGERS, EDITOR

SentencingTrendsTo ease overcrowdingand lower exorbitantincarceration costs, legislators have been easing their sentencing policies.

T

Kentucky, one of manyexamples, has reformed its

juvenile justice system byreducing the use of out-of-home confinement for low-

risk youth, particularlythose adjudicated for status

offenses, and expandingopportunities for treatment.

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affected prisoners retroactively, andcurrent prisoners are able to petitioncourts for sentence reductions.

The Honorable Patti B. Saris, chairof the U.S. Sentencing Commissionsaid the new guidelines represented“a significant step toward the goalthe Commission has prioritized ofreducing federal prison costs andovercrowding without endangeringpublic safety.” She furthered that:“Commission researchers estimatethat applying the amendment goingforward may reduce the prison popu-lation by 6,500 in five years and farmore over time, while more than46,000 current prisoners could be eli-gible to have their sentences reducedby retroactive application of theamendment.”

Yet she commented that moreneeds to be done. “Still, onlyCongress can act to fully solve thecrisis in federal prison budgets and

populations and address the manysystemic problems the Commissionhas found resulting from mandatoryminimum penalties.”

According to early release peti-tions obtained by The AssociatedPress, some of the offenders werelow-level offenses, such as the caseof Lincoln Steve White, 43, whowas caught buying two ounces ofcocaine for $1,400 in Florida in 2008and has served more than five yearsof a seven-year sentence.

Dramatic Steps by States

Beyond the federal drug guide-lines, states have made dramaticsteps to change sentencing. During2014, legislators in at least 30 statesand the District of Columbia autho-rized a range of law changes andpolicies that may address the nation’s

scale of incarceration, according to areport called “The State ofSentencing, 2014, Developments inPolicy and Practice,” conducted bythe Sentencing Project.

The report outlines specificactions taken by states, includingreclassifying certain low-leveloffenses, adopting changes to pro-bation and parole policies thatexpand sentencing alternatives,adopting reforms to juvenile justiceand scaling back collateral conse-quences associated with a criminalconviction, including employmentbans. Here are some highlights ofthe changes made by states.

State SentencingShifts

According to the SentencingProject, California voters authorizeda substantial law change under

The U.S. has more people incarcerated than any other nation with 2.2 million people in prison or jail.




Proposition 47, a measure thatreclassified six low-level propertyand drug offenses from felonies tomisdemeanors and eliminatedprison as a sentencing option. Fourstates—Idaho, Mississippi,Nebraska, and Vermont—autho-rized reforms under the JusticeReinvestment Initiative. Also inCalifornia, lawmakers equalizedquantity triggers for certain crackand powder cocaine offenses,increasing the number of states thathave authorized such law changes;Missouri, South Carolina, and Ohioenacted similar policies in recentyears.

Also in California, lawmakersauthorized AB 1468, a comprehen-sive measure that included severalprovisions relating to persons sen-tenced to county jails for non-seri-ous, non-violent, non-sexual felonyconvictions under the state’sRealignment policy. A key provisionrequires the presumption of splitsentences for persons sentenced to acounty jail term under Realignmentoffenses and requires probationarysupervision.

The low-level property offensesreclassified by California’sProposition 47 include shoplifting,

theft, and check fraud under $950,as well as personal use of most ille-gal drugs. State savings resultingfrom the measure are estimated tobe at least $150 million a year andwill be used to support school tru-ancy and dropout prevention, victimservices, mental health and drugabuse treatment, and other pro-grams designed to expand alterna-tives to incarceration. Approximately10,000 incarcerated persons will beeligible for re-sentencing under thenew law.

In Alabama a task force wasestablished to study and identifycauses and potential legislative solu-tions to address chronic overcrowd-ing in the state’s prison system. InDelaware, HB 312 authorized judgesto impose sentences concurrently,rather than limiting sentencing toconsecutive sentence imposition.

In Florida, HB 89 enables judgesto depart from mandatory minimumsentences for aggravated assault.Prior to the law change, aggravatedassault was subject to a three-yearmandatory minimum sentence if afirearm was displayed during anoffense or a 20-year mandatoryminimum sentence if a firearm wasdischarged.

In addition, the Sunshine State’sSB 360 raised the weight thresholdfor trafficking in prescriptionpainkillers containing oxycodoneand hydrocodone, created newweight categories for several traf-ficking offenses and reduced statu-tory penalties for specified offenses.Specifically, the measure eliminatedthe mandatory minimum for illegalpossession or distribution ofhydrocodone painkillers under 14grams, and illegal possession or dis-tribution of oxycodone painkillersunder 7 grams.

In Missouri, lawmakers revisedthe state’s criminal code. The focalpoint of the revision was the imple-mentation of new felony and misde-meanor classes. Under the new,lowest level misdemeanor class, jailtime is no longer a sentencingoption. Previously, the code autho-rized sentences of 15 days to a yearfor misdemeanor convictions. Asalient provision in the new laweliminates jail time as a sentencingoption for persons convicted of afirst-time offense of possessing lessthan 10 grams of marijuana.Possessing up to 35 grams of thedrug is currently punishable by upto a year in prison.

At the federal level, people incarcerated on a drug conviction make up half the prison population.


February/March 2016


New Hampshire legislation authorized earned timefor certain incarcerated persons who participate in self-improvement programs including education and voca-tional programs and mental health treatment. Judgeswill determine at sentencing if persons sentenced toprison are eligible for this earned time provision. Thelaw also authorizes earned time reductions for eligibleinmates who were incarcerated prior to the effectivedate; the measure outlines a process for inmates to peti-tion the sentencing court.

Four states, Idaho, Mississippi, Nebraska and Vermont,authorized legislation to analyze criminal justice data toidentify key factors contributing to state prison populationgrowth, and developed policy proposals to reduce costsand improve public safety. Alaska, the District ofColumbia, Maryland, Minnesota, New York, and Oregonaddressed marijuana offenses in various ways.

Probation & ParoleDuring 2014, three states—Mississippi, New York,

and Oklahoma—adopted changes to probation andparole policies to broaden criminal justice options. InMississippi Provisions under HB 585, the state’s justice

reinvestment initiative act, expanded judicial discretionto impose sentences such as court-ordered treatment forindividuals convicted of certain drug offenses. The mea-sure also authorizes circuit courts to target individual-ized treatment for veterans with certain convictions.

In New York judges can now establish probationterms for felony offenses at three, four or five years andfor misdemeanors at two or three years, based on thenature of the crime, the individual’s criminal history,and risk of re-offending. Previously, almost all felonycases resulted in a five-year probation term.

Oklahoma lawmakers authorized SB 1720, a measurethat requires probation agencies to provide probationerswith intake and orientation, substance abuse assess-ment, and a treatment plan. The measure also requiresthe agency to conduct a criminal risk needs assessmentand reasserts statutory authority to impose certain con-ditions of supervision.

Collateral ConsequencesThe consequences of a criminal conviction often go

well beyond the period of incarceration or probation.Simply having a criminal record can bar individuals

The number of Americans incarcerated for drug offensesclimbed from 41,000 in 1980 to nearly a half million in 2014.




from securing employment, receiv-ing public benefits, or voting. In2014, at least 14 states and theDistrict of Columbia passed legisla-tion to minimize these conse-quences in law changes thataddressed employment, federalfelony drug bans on public assis-tance, and initiatives to ease thereentry process for those strugglingto reintegrate into their communi-ties, noted the Sentencing Project.

For example, of note inCalifornia’s Proposition 47 is a pro-vision that permits people who havecompleted their felony sentences forspecified offenses to petition thecourt to reclassify those convictionsto a misdemeanor. This law changemay eliminate barriers o employ-ment, housing, and jury service.

Delaware, Illinois, Nebraska, NewJersey and the District of Columbia

Drug sentencing reforms include diverting some offenders to community supervisionand treatment, adjusting drug penalty thresholds and relaxing mandatory minimumsentences.


February/March 2016


authorized “ban the box” policies toreduce barriers to employment. Thisdiscourages employers from requiringprobationers to check a box disclosingtheir past conviction. In Delaware,the new law prohibits public employ-ers from inquiring into the criminalbackground of job candidates untilafter their first interview. Employersmay then disqualify applicants onlyfor business reasons and only aftertaking into consideration the natureof the offense and the amount of timepassed since the offense.

Juvenile JusticeWith growing awareness around

how justice system involvementimpacts youth, states are continuingto rethink how they hold youthaccountable. Some have overhauledtheir juvenile justice system, placingnew emphasis on preventive ser-vices and community-based alterna-tives to detention. Others havemade incremental changes to theirpolicies on juvenile dispositions andthe collateral consequences of ajuvenile record. At the close of 2014,youth faced improved outcomes inat least 15 states.

New legislation in Kansas allowsstate courts to focus on treatmentrather than punishment for low-riskyouth in need of care. The lawexpands prosecutorial discretion todepart from established adjudicationand placement processes to referyouth to child welfare services.

Kentucky’s SB 200 will transformthe state’s juvenile justice system byreducing the use of out-of-homeconfinement for low-risk youth, par-ticularly those adjudicated for statusoffenses, and expanding opportuni-ties for treatment to reduce recidi-vism. These youth will be divertedinto community-based programsand requires evidence-based assess-ments to guide individual interven-tions and other provisions.

The U.S. Supreme Court’s decisionin Miller v. Alabama determined that

mandatory life without parole sen-tences for juvenile defendants wereunconstitutional. During 2014, sevenstates passed legislation to come intocompliance with the decision.

PolicyRecommendations

The report by the SentencingProject acknowledges lawmakershave enacted a number of legislationchanges to improve criminal justicepolicy during 2014. It states: “Whilethe pace has accelerated in recentyears, most of these measures willhave only a modest impact on thescale of incarceration. It will takemore far-reaching measures tomarkedly reduce the nation’s rate ofincarceration, which is far abovethat in other western nations.”

Some of the ways that policy andpractice revisions could be broadenedin order to decrease prison popula-tions are by changing statuary penal-ties for certain offenses and by modi-fying truth-in-sentencing require-ments for persons with violentoffenses. Lawmakers could addresssentencing policies known to resultin racial disparities, such as equaliz-ing quantity triggers for intent-to-sellpowder and crack cocaine offenses.Emulating comprehensive juvenilejustice reforms enacted by Hawaiiand Kentucky that included reducingout-of-home placements and priori-tizing therapeutic interventions andevidence-based treatment plans is arecommendation that would reducethe number of youth in secure deten-tion. Lastly, addressing collateralconsequences that the stigma of aprior record has on employment orhousing can go a long way in estab-lishing an ex-offender as a productivemember of society.

To read the full report “The State ofSentencing 2014” see http://sentencing-project.org/doc/publications/sen_State_of_Sentencing_2014.pdf

HigHligHTS in STaTePoliCy CHangeS

Sentencing: At least 16 statesand the District of Columbiaauthorized legislation to addresssentencing policy, including statu-tory penalties that limit lengths ofconfinement. Notably, voters inCalifornia approved reclassifyingcertain low-level offenses fromfelonies to misdemeanors, elimi-nating prison as a sentencingoption. Lawmakers in Mississippiscaled back the state’s truth-in-sentencing provision from 85% to50% for violent offenses.

Probation and parole: Threestates—Mississippi, New York,and Oklahoma—adoptedchanges to probation and parolepolicies that expand sentencingalternatives.

Collateral consequences: Atleast 14 states and the District ofColumbia enacted legislation toscale back collateral conse-quences associated with a crimi-nal conviction, including employ-ment bans and federal felonydrug bans on public assistance.

Juvenile justice: At least 15states adopted reforms, includingeliminating juvenile life withoutparole as a sentencing option inWest Virginia and Hawaii. Kentuckyand Hawaii also enacted compre-hensive juvenile justice reformmeasures to reduce the use of out-of-home placement for juvenilesand prioritize therapeutic interven-tions as a public safety strategy.

Source: “The State of Sentencing,

2014, Developments in Policy and

Practice,” by The Sentencing Project




Withthe high costof incarceration and many liveswasted by incarceration, risk assess-ment tools, community supervisionand technology that can supportpretrial release into the communityseems not only to be substantiallycutting costs, but helping offenderstoo, experts say.

By employing pretrial release, saycommunity corrections supervisors,pregnant woman and those withchronic illnesses can then continueto go to their regular doctors, savingMedicaid/Medicare costs for thejurisdiction. Offenders with jobs cancontinue to go to them if they areon a monitoring program. Young

people can finish school. And thoseneeding treatment can get it in atimely fashion.

There is a paradigm shift in theway offenders are viewed, especiallyaround pretrial management, statesJohn Schloemann, national salesleader with Tribridge, a technologyservices firm. He says that as awhole, we are “moving fromresource-based to risk-based deci-sion-making,” and he believes it ulti-mately makes sense because many injail have not been found guilty.“More than 60% of those in jail areawaiting trial,” which not only “takesup valuable space but can cost $60 to$200 a day to house them.”

It appears the trend is that courtsand law enforcement “are pivoting

more aggressively to an evidence-based model,” he furthers. “We areassessing the threat to individualand to the public more so now thanever before.”

Based on recent legislative ses-sions, progressive states are movingto a risk-based rather than a bail-based release program, concursAngel Ilarraza, Ph.D, a criminolo-gist, public policy planner and cur-rently director of consulting andbusiness development withNorthpointe, Inc., the developer ofnationally-recognized classificationinstruments. Other states, however,despite legislative mandates, arereleasing to community corrections,but are doing so “begrudgingly.”He notes that he is not advocating

BY DONNA ROGERS, EDITOR

The Risks & Rewards of Pretrial ReleaseValidated assessments and EM tools open new doors. With electronic monitoring, those

with medical issues can stay ontheir own insurance, saving the

county tremendous costs.

F-M 16 P31-35 pretrial_CT 2/05 p020-21 Best Build 2/25/16 4:47 PM

February/March 2016


“letting everyone out” but is sug-gesting we make smarter decisionsabout whom gets incarcerated basedon metrics about who is a threat.

Dr. Ilarraza points to a study ofpretrial offenders tracked by theNational Association of BailBondsmen that compared FTA ratesin publicly funded bail programs. Thebondsmen’s perception initially wasthey did a better job of getting folksto show up to court dates, he details.But that wasn’t the case. “Now actu-arial risk tools really help us under-stand the failure to appear rate.”

Use of money bail “withoutaddressing the risk, especially for therisk for violence, doesn’t makesense,” he believes. “It seems tomake the best sense to move fromresource- to risk-based assessment—and to consider the likelihood ofreoffending and violent reoffending.”

There has been a shift towardslocal dispositions of criminal casesas part of criminal justice reform.This has often been motivated lessby effectiveness and more by fiscalconcerns, says Helen Harberts, alongtime criminal justice profession-al, now retired, who served manyyears as a deputy district attorney,working with drug courts, as well asa chief probation officer and as theinterim director of a communitysupervision and corrections pro-gram. “However, she continues,“when appropriate risk AND needassessments are done correctly, theyprovide a good guide for what canbe expected from a person who isreleased into the community.”

She cautions that addressingneeds in conjunction with risk iscrucial. “In other jurisdictions, thetrend has been to release people,but the amount of local resources isinsufficient to meet the assessedneeds, or the assessments are notfollowed. In those areas, drug useand crime is going up. Deaths andoverdoses are increasing. Neglectcases are increasing.

“It should be obvious to all thatusing an assessment to determinethe level of intervention required toaddress criminality, and then NOTfollowing the assessment with ade-quate services in sufficient dosage isa recipe for trouble. It breaches thepublic trust,” she says.

She says that unfortunately “riskassessment tools are often NOTused at all available points of contact

due to funding and access restric-tions. Clearly, the entire systemwould be better off with assess-ment-driven decision-making thatoccurs as quickly as possible uponthe initiation of criminal proceed-ings, and is repeated throughout thedefendant’s stay in the criminal jus-tice system.”

Harberts furthers that “…Timelytreatment interventions which aredriven by good assessmentsimprove the prognosis for success incriminal offenders and may favor-ably impact their ultimate case reso-lution.” She cautions that the major-ity of our high-risk offenders whopresent the poorest prognosis ofsuccessfully completing probation

without violations have criminalthinking errors. Thus, along withsubstance abuse treatment in high-risk offenders, it is vital to addresscriminal thinking with a tool such asMRT (an evidence based practiceinstrument developed byCorrectional Counselling Inc.).“Failure to do so is like trying to runa four wheel car on three tires. Youbasically make a clean and sobercriminal.”

The Northpointe Suite is an auto-mated decision-support softwarepackage of scientifically validatedrisk/needs assessment and offendercase management tools. It wasdeveloped to be a repository ofinformation to follow an individual’strajectory through the criminal jus-tice system, explains Ilarraza. Itoffers functionality through variousagencies and uses the nationallyrecognized Decision Tree ObjectiveJail Inmate Classification System.

Using a cross tabulation system(see Figure 1) it shows how muchrisk an offender might present, ifthey are eligible for release and whatlevel of supervision they wouldrequire. In a pretrial setting, agen-cies can determine based on the riskfactor “what are we willing to toler-ate within our community and ifoffenders are eligible or not,”Ilarraza notes.

In addition to the risk, it also canprovide an assessment of crimino-genic need that can help a probationofficer understand what type ofintervention should be applied, hefurthers. “It is not a cookie cutterapproach.”

Another tool, Tribridge Pretrial360is a set of solutions to help agenciesdeal with pretrial management moreeffectively. It has three distinct mod-ules to focus on different areas ofpretrial management: DefendantManagement, Supervision CaseManagement, and Risk Assessments.

Essentially what the programdoes is consolidate a wide range of

Figure 1. This risk score matrix depictsthe Northpointe COMPAS supervisionrecommendation based on the offend-er’s general risk of recidivism and theirviolence risk scale scores. The screenermay override the recommendation dueto aggravating or mitigating circum-stances.




info—from the court, previousoffender information, etc., from abehavioral standpoint, saysTribridge’s Schloemann. From it,users can develop a report with asnapshot of key metrics for thejudge to make a decision.

Getting this information from asingle system typically isn’t happen-ing today, he furthers. “It is a dis-jointed process, it is not easy toassemble [the data], and it’s veryheavy and paper based,”Schloemann points out. “Our solu-tion allows all the information to gointo one system.” Some of the met-rics within Pretrial360 include:Criminal history tracking, mental ill-ness, pending charges, past FTAs,and ability to track a monitoringdevice. It has recently beendeployed by Mesa and WellsCounties in Colorado.

Moving from a resource- to risk-based decision model, he empha-sizes, “can have a profound impacton recidivism rates. Statistics showthat by just staying one night in jail,offenders are more likely to go to jailagain.”

Pretrial ElectronicMonitoring Pilot

Nash County, North Carolina,Sheriff’s Office, a somewhat smalldepartment with 80 sworn officersand 50 jail personnel, has been pro-viding a pretrial release program forthe past several years. Located nearRocky Mount, about 60 miles east ofRaleigh, the area is mostly rural andfarmland, with about a 100,000 resi-dents spread over 600,000 squaremiles. The department typically tracksabout 10 to 15 people, says DeputyRandy Van Houten, mostly low-level

offenders who can’t afford bail.Van Houten explains that with

the distance separating them andthe unreliability of cell phones inwooded locales, he has worked withquite a few vendors’ equipment.Some of it didn’t work and some ofit was just big and bulky, especiallythe personal tracking unit thatoffenders have to carry with themthat stigmatized them as a criminal,he notes. Another issue he foundwas with the ankle bracelets, which,if not kept clean, can cause skininfections but when users tried toclean behind them, the band wouldcome undone and backplate wouldfall off, causing repeated false alerts.

Nash County is running a pilotprogram with the Corrisoft AIR pro-gram, which has a smartphone serv-ing as a tracking device that theoffender can hide in his or her pock-


February/March 2016


et or purse. “Offenders love itbecause they saw we were trying tohelp them,” he says. In addition, itsaves the county a bundle. It costsabout $8 a day compared to an esti-mated $60 a day to have someone injail, he says. In fact in 2015 it savedthe county about $109,000—andthat is without medical costs.Because the jail is relatively small,housing about 250 (in contrast,neighboring Wake County holdsabout 1,200), it doesn’t have 24/7medical. After 11 pm, they send anymedical emergencies to the localhospital with a deputy, he says.With offenders that have heart dis-ease, diabetes, gout, and even one

on dialysis, the latter of whomneeded to be accompanied by adeputy three times a week for a sixhour process, “cost savings aregreat” for monitoring in the com-munity. “They can go to work, totheir regular doctor. They receivemedical care we can’t provide.”

Pre-adjudication medical costswere also an issue with the St. LucieCounty Pretrial Program in Florida.“The biggest thing we stumbled onis paying medical costs,” says MarkGodwin, criminal justice coordina-tor. Offenders, for example, mightbe pregnant and deliver a baby, thenbe treated at the mental health facil-ity for postpartum depression. “Ourlocal hospitals charge counties about200% more than Medicare costs,”he says—and they were seeing thison a daily basis. “Once we put themon the program they can be on theirown insurance.”

St. Lucie carries a caseload of 150to 200 offenders supervised daily,with about 65 on electronic moni-toring. “We put them on as a sanc-tion while they’re in drug court,”explains Ivelisse Chico-Randazzo,pretrial program manager, St. LucieCounty Pretrial Program. “We addthe extra layer of supervision,” shesays, so they can go about their

lives. She says they contract withSatellite Tracking of People (STOP)for electronic monitoring equip-ment, and with a staff of 10 (oneperson is on-call overnight) they canmonitor remotely from a computerany time of the day or night.

“We can track when they are attheir place of business, go to meet-ings, we even see them leaving toget the school bus.” In one case themonitoring technology tracked anoffender that broke into an off-sitepolice evidence storage unit wheremarijuana was stored from a grow—even providing police with the win-dow that was breached.

Judges bought into the program“when they saw the doomsday pro-jections for the jail,” says Godwin,which was then 1,300 beds, but wasprojected for 1,700 to 2,000 bedsbased on population increases. Ithas since remained at about 1,300,and because pretrial staff is locatedin the courthouse, it gives the judgesthe confidence to work with us, hedetails. The program has been suc-cessful. Since it was put into place in2007, neighboring counties are see-ing the benefit and catching on.Lately they have begun contractingwith St. Lucie County to handlemonitoring for them.

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Chronic illnesses and pregnancies can be better handled by patient’s own doctors ifthey are deemed low risk offenders and offered pretrial release.


courts today february/march 2016

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