Evidence Based Pretrial Release and Monitoring in Wisconsin August 2018 Jeffrey Kremers Circuit Judge Milwaukee (ret.) 1 Pretrial Justice » After a person is arrested, judicial officers must decide: 1. Will this person be released? 2. Will this person be detained? 3. If released, what will be the release conditions? » Pretrial decisions can have significant impact:      2 Public safety pretrial Case disposition Likelihood of receiving a sentence to incarceration Length of the sentence to incarceration Public safety post-disposition Overview of EBDM Pretrial Decision Points Law Enforcement Decisions Pretrial Status Decisions Charging Decisions Plea Decisions Release With/Without Conditions Cite Divert Arrest Release Detain Sequential Review of Detained, Released & Supervised Defendants Violation Response 3 Charge Divert Plea Terms Defer Dismiss “Legal” » Presumption of Innocence » Right to (or Presumption of) Release  Release must be the norm  Two constitutionally valid purposes for limiting pretrial freedom:  Court appearance and public safety  “[D]etention prior to trial … is the carefully limited exception.” U.S. v Salerno (U.S. Supreme Court, 1987) » Non-Excessive Bail  Least restrictive conditions » Due Process » Equal Protection » Individualized Bail Setting 4 BAIL » 969.001 (1) “Bail means monetary conditions of release. » 969.01 Eligibility for release. (1) Before conviction. A defendant arrested for a criminal offense is eligible for release under reasonable conditions designed to assure his or her appearance in court, protect members of the community from serious bodily harm, or prevent the intimidation of witnesses. Bail may be imposed at or after the initial appearance only upon a finding by the court that there is a reasonable basis to believe that bail is necessary to assure appearance in court. • 969.01(1) ……the judge shall first consider the likelihood of the defendant appearing for trial if released on his or her own recognizance. • 969.01(4) Considerations in setting conditions of release If bail is imposed, it shall be only in the amount found necessary to assure appearance of the defendant. Conditions of release other than monetary conditions may be imposed for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses 969.02 Release of defendants charged with misdemeanors. The Judge may: (d) Impose any other condition deemed reasonably necessary to assure appearance as required or any nonmonetary condition deemed reasonably necessary to protect members of the community from serious bodily harm or prevent intimation of witnesses 969.03 Release of defendants charged with felonies. The Judge may: (e) Impose any other condition deemed reasonably necessary to assure appearance as required or any nonmonetary condition deemed reasonably necessary to protect members of the community from serious bodily harm or prevent intimidation of witnesses » American Bar Association Standard 10-1.1 “The law favors release of defendants pending adjudication of charges.” » National District Attorneys Association Standards on Pretrial Release 45.2.1 “Whenever possible, release before trial should be on the recognizance of the accused”… “Reliance on money bail should be discouraged and be required only in those cases in which less restrictive conditions will not reasonably ensure the defendant’s appearance.” » American Bar Association Pretrial Release Standards 101.10(a) “Every jurisdiction should establish a pretrial services agency or program to collect and present the necessary information, present risk assessments, and, consistent with court policy, make release recommendations required by the judicial officer in making release decisions, including the defendant’s eligibility for diversion, treatment, or other alternative adjudication programs, such as drug or other treatment courts. Pretrial services should also monitor, supervise, and assist defendants release prior to trial, and review the status and release eligibility of detained defendants for the court on an ongoing basis”. Foundational Concepts » Pretrial Justice  The need to balance competing goals  Protect the public  Assure court appearance  Preserve legal and constitutional rights afforded persons awaiting trial “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception” U.S. v. Salerno (1987) Foundational Concepts » Pretrial Legal and Evidence-Based Practices  If we conducted research to determine the most effective way to assure public safety and court appearance, what would the research show DETAIN EVERYONE » Goal  Assure public safety and court appearance  Detain highest risk defendants  Release moderate risk defendants with interventions and services targeted to mitigate risk  Release low risk defendants with minimal or no conditions Applying EBDM to Pretrial Release & Detention Measuring & Managing Risk – What the Evidence Tells Us ♦ Risk is Inherent in Pretrial Release  Our system of justice DEMANDS that we take risk for most pretrial defendants  Question is not IF we take risk – Question is “How well do we MEASURE risk and how well do we MANAGE it”  Release and detention decisions focus primarily on the charge not the risk posed  Pretrial release and detention is often determined by resources not risk  Enhancing public safety and being good stewards of public funds requires us to manage release and detention based on RISK Applying EBDM to Pretrial Release & Detention Measuring & Managing Risk – What the Evidence Tells Us ♦ Monetary bail does not improve court appearance rates for defendants and can have negative consequences ♦ Monetary bail does not improve community safety ♦ Implementing differential pretrial supervision strategies based on pretrial risk does improve pretrial outcomes ♦ Jurisdictions that employ court reminder notification procedures have significantly reduced FTA rates Pretrial Justice » Pretrial goals 1. Maximize public safety and law abiding behavior 2. Maximize court appearance 3. Maximize pretrial release/minimize pretrial detention » Pretrial success  A released defendant who appears in court and does not engage in pretrial misconduct » Pretrial failure  A released defendant who fails to return to court and/or engages in pretrial misconduct  A defendant who is detained unnecessarily who experiences collateral consequences 14 Pretrial Justice in Wisconsin » Considerable variation in practice  Some counties do not assess pretrial risk  Where risk is assessed, a variety of risk assessment tools are used  Some counties do not provide pretrial supervision  Where supervision is provided, practices vary  Varying practices throughout the state around the use of secured and unsecured conditions  Data definitions vary  Data collection/analysis varies » Practices in one county can and does affect others 15 Wisconsin Pretrial Pilot Project » The pretrial pilot seeks to test a set of legal and evidence-based practices  Consistently, while at the same time recognizing variation in local practices and resources  Consistent use of a pretrial risk tool (the PSA)  Consistent data definitions & capture  Consistent supervision practices  Learn from/modify the model  Replicate elsewhere in the state 16 Pretrial Risk Assessment » Pretrial risk assessment  The PSA is an actuarial pretrial risk assessment – an objective, statistically-based resource that uses pretrial risk factors to assess a person’s likelihood of pretrial success or failure  A pretrial risk factor is a characteristic that, when present (e.g., criminal history), indicates an increased risk of pretrial failure » The results of a pretrial risk assessment can be used alongside other information to inform the release/detention decision » The assessment is not intended to “drive” the decision but instead, to inform the decision 17 Pretrial Risk Assessment » Hundreds of jurisdictions use pretrial risk assessments » More than two dozen different assessments exist » Most pretrial risk assessments measure a person’s likelihood of: 1. 2. Making court appearances Not being arrested for new criminal activity » Many of the assessments use the same core group of risk factors:      18 Age Criminal history Past failures to appear in court Pending cases Current offense Public Safety Assessment: Origins » PSA was developed in 2013 by the Laura and John Arnold Foundation (LJAF) » LJAF’s Criminal Justice Initiative strives to identify opportunities that will advance community safety and the values of equity, fairness, effectiveness, and racial justice. » Pretrial Justice & Risk Assessment  LJAF sought input from policymakers and practitioners to shape their research agenda  Many emphasized the importance of the pretrial release/detention decision  Despite six decades of research, low adoption rate of validated pretrial risk assessment tools  Existing assessments were resource-intensive; many were jurisdiction-specific; none provided information about the potential for pretrial violence 19 PSA’s Innovations » The Foundation sought to develop a pretrial risk assessment tool that: 1. Separately reported prediction of failure to appear and prediction of new criminal activity 2. Also provided new violent criminal activity prediction 3. Used non-interview-dependent risk factors 4. Improved overall predictive accuracy 5. That could be used anywhere in the U.S. 6. That would be made available without cost 20 PSA Risk Factors Pretrial Outcome Risk Factor FTA 1. Age at current arrest 2. Current violent offense 2a. Current violent offense & 20 years old or younger 3. Pending charge at the time of the offense X X X X X 5. Prior felony conviction X X 6. Prior violent conviction X 8. Prior failure to appear pretrial older than 2 years X X X X 7. Prior failure to appear pretrial in past 2 years 9. Prior sentence to incarceration NVCA X 4. Prior misdemeanor conviction 5a. Prior conviction 21 NCA X X X PSA Validation » Validated the PSA on over 500,000 new cases  Localities in the U.S. Northeast, Southwest, & Midwest, and 2 states » Results confirmed the nine risk factors and the weighting of each risk factor 22 PSA General Scoring Instructions » Who gets assessed with the PSA?   Only adults Not people who are already incarcerated » What data is used to score the PSA?  Adult criminal history   Adult court appearance history Traffic and criminal charges that carry a potential penalty of incarceration » What data is not used to score the PSA?  Juvenile records are not considered  Non-criminal traffic are not counted  Ordinance violations are not counted 23  Self-reported information (e.g., from an interview) is not used Pretrial Risk Management » We measure risk so we can manage that risk » Pretrial legal and evidence-based practices:  Least restrictive conditions  Risk principle  Practices that are shown to be effective 24 Improving Court Appearance » What works and doesn’t work? 25  Pretrial detention  Can assure court appearance  Use is legally limited  Expensive  Court Date Reminders  Can improve court appearance by approximately 30 to 50%  Pretrial monitoring/supervision: mixed results  For “lower” risk persons: little benefit or negative benefit  For “moderate” and “higher” risk persons: some increase in appearance  Secured money bail: little support  Most studies fail to show that secured financial conditions increase appearance  Two studies show that unsecured conditions achieve the same appearance rates as secured conditions  No study shows that higher monetary amounts increase appearance Improving Public Safety » Pretrial detention  Can increase public safety/law-abiding behavior  Use is legally limited  Expensive » Pretrial monitoring/supervision: mixed results  For “lower” risk persons: little, no, or negative benefit  For “moderate” and “higher” risk persons: mixed results for lawabiding » Secured money bail: little support  All studies fail to show that secured financial conditions improve public safety  No study shows that higher monetary amounts improve rates 26 Decision Making Framework » DMF Goals  Identifies a proposed release/detention recommendation designed to manage risk in the most effective manner  Considers  Current charge +  PSA results (FTA scale, NCA scale, NVCA flag)  Guides recommendations intended to  Detain, when allowable, highest risk defendants  Release moderate risk defendants with conditions targeted to mitigate risk  Release low risk defendants with minimal or no conditions 27 DECISIDH MIMEING FRAMEWORK DRAFT NCA 1 PICA. 2 PICA. 3 NCA A 5 PICA 1 Level 1 RIDE Level 1 RIDE LevellE?IDH LevelElEeH'DFl - Level 4 3-. EDP. man-mm: mummn Bail RDFI: RCIH RCIH Cash Face-to-Face Contact lilo No lxj'month Even.I other weelt Weeklv Weeklv Alternative Contact No 1xfrn onth lemonth Everv other week MD MD Supervised Conditions No No As Authorized AsAuthoriIed A5 Authorized A5 Authorized Court Date Fleminder ?f'es "r'es ?f'es ?r'es ?has ?has Criminal HistorfoJlS- No ?r'es 1l'es 1r'es 'fes 'fes MCITE: SAMPLE DOCUMENT. AUTHORIEED IWILL BY Condition Authorited Drug Testing Defendant Level 3 or greater supervision on the Dl'vlF Ath Scores It or greater on substance use screen AND has a historv of illegal drug useg?abuse Portable Breathalmer usefabuse DH current alcohol abusei CIFI charged with an Cl'rl'v'l case AND qualifies for supervision Defendant Level 3 or greater supervision according to AND Scores It or greater on substance use screen AND {has a historv of problematic alcohol Defendant has score of I or greater on substance use screen and a history.I of alcohol abuse or current alcohol abuse CIFI Police report andluror criminal Absolute Sobrietv complaint indicate the defendant was intoxicated at time of arrest DH charged with an DWI case and qualifies for supervision GPE Monitoring for I.Iictim Defendant charged with a felon-l.I non-DWI offenser is subject to Dl'vlF Step 1 DH scored Level 5 Supervision and charged with a violent offense DH: Concern ECHAM qualify for supervisionJ private SCRAP-J1 is an option depending upon program capacitv- Defendant charged with an DWI offense and qualifies for Level 3- Supervision according to the AND if anll.I 1 ofthe following is true: Scores It or higher on substance use screen DH Currentlv on pretrial release for an DWI at time of alleged HEW Charged with 3rd or greater lf defendant does not MILWAUKEE COUNTY OUTCOMES 2017 BOND TYPE COMPARISON PRE POST SYSTEM CHANGES 2009 BOND TYPE 2012 BOND TYPE PRE-PT SCREENING POST PT SCREENING 0 0 Universal Screening Completed I Interviews I Unable I Declined Percent Screening Outcomes SO Percent DMF Adherence Bail Supervision GPS I Adhered I Override I Underride Percent Released (N=3,390) 90 82 78 80 76 71 70 65 61 Percent Released 60 50 45 40 30 20 10 0 Lev. 1 Lev. 2 Lev. 3 Lev. 4 Supervision Level Lev. 5 Lev. 5 F Total Pretrial Success Rate 120 100 Percent 08888 Levell Level2 Levels Level4 Levels LevelSF Total (199) (664) (655) (332) (115) (441) (2,406) Supervision level I Appearance I Safety I No NVCA 969.035 Pretrial detention » A circuit court may deny release from custody…  A person accused of committing or attempting to Commit certain offenses.  A pretrial detention hearing is required where DA must show by clear and convincing evidence that the Defendant committed the crime.  The defendant has the right of confrontation, access to Police reports and rules of evidence apply meaning no hearsay 36 Next Steps I Preventative Detention I Statewide Pretrial resources I Statewide Data systems