Reinventing Justice: Case Studies in New Thinking

Can local justice systems prevent people who shouldn’t be detained from ending up behind bars? Sometimes all it takes is smarter communications, according to a study of an electronic alert system devised by Durham County authorities in North Carolina—one of six case studies released by the Urban Institute on promising reforms underway around the U.S.

Can local justice systems prevent people who shouldn’t be detained from ending up behind bars?

Sometimes, all that’s required is a shift to improved communication models that “meet people where they are, clearly explain what they need to know to take action, and use persuasive and respectful language to overcome distrust,” according to an Urban Institute case study.

The study, part of a series highlighting innovative justice practices across the U.S. supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge Innovation Fund, examined reform efforts undertaken in North Carolina’s Durham County and California’s Santa Clara County.

Researchers found that a simple electronic alert system devised by Durham County that reminded people when they were due in court reduced the share of people who failed to appear for their scheduled court dates by six percentage points from September 2017 to May 2018.

And a so-called “No Cost Release” campaign in Santa Clara County made people aware that they were entitled under California statutes to alternatives to money bond —countering a “common perception among people booked in the jail that posting money bond was the way to get released before trial,” the study said.

Such relatively low-cost interventions that focused on upholding the rights of people at the pretrial stage helped “the people who are affected by the justice system the most,” the study said.

electronic alert

Durham County’s electronic reminder system alerts individuals of scheduled court dates

In Durham County, a significant proportion of individuals held in jail before trail were detained because they failed to appear for a designated court date. But county officials realized that most people aren’t aware that a “Failure to Appear” (FTA) finding triggers an automatic issuance of a warrant for arrest under North Carolina law.

In order to reduce the number of people held on FTAs—and the associated costs to county authorities—officials developed a simple automatic online reminder system which reduced the paperwork and time that staff were otherwise spending trying to reach people on the phone, the study said.

Since the program was launched in June 2017, the number of FTAs dropped from 10 percent of the people who signed up for the system in September 2017 to 4 percent in May, 2018, the county reported. At the same time the share of people who didn’t sign up for the reminder system and failed to appear remained constant, at around 7 percent, from September 2017 to May 2018.

Similarly, the jail system in Santa Clara County, which includes the city of San Jose, has an average daily population of 3,400 in 2017. But many of those held pretrial were distracted by advertisements for bail bonds business at the jail, unaware that that they were entitled to a bonded release under California law.

So the county mounted what it called a “No Cost Release Campaign” that emphasized alternatives available for those detainees who qualified: own recognizance (OR) which allowed for a detainee’s release on the condition that he or she will return to court of his or her own volition; and supervised own recognizance release program (SORP), which had the added condition of being supervised by a pretrial officer.

just ask

Santa Clara County’s “No Cost Release” campaign makes individuals aware of alternatives to money bonds.

The campaign was strengthened by county Pretrial Services officers who came to the jail every day to interview interested people and assess their eligibility for OR/SORP release. The program aimed to make sure clients were aware of their release options before posting bail or being housed. The case study was conducted only a few months after the campaign was introduced in December, 2017—so only preliminary conclusions were available; but researchers said the effort, which included seeking out former pretrial clients to discuss their experiences on a promotional video, was promising.

Intimate Partner Violence

Another Urban Institute case study of best practices found promise in a pretrial strategy for handling intimate partner violence cases in Buncombe County, NC.

“Criminal justice system actors tasked with responding to violence between intimate partners are grappling with how to effectively secure victims’ safety while ensuring that those who use violence are held accountable and put on a path to change their abusive behavior,” said the authors of that case study.

 Prompted by a spike in fatalities caused by abusers released into the community on their own recognizance, Buncombe County was one of the first U.S. counties to develop and pilot a specialized pretrial protocol designed to supervise pretrial-release individuals charged with being be the instigators of intimate partner violence (IPV).

The county’s pretrial services office established a “multi-pronged mechanism” to manage the risk of violence when an aggressor is released into community.

Under the mechanism, every aggressor released into the community through pretrial services was required to call in once a week, and contact escalated in frequency based on a risk assessment of potential threat. At the same time, pretrial services shared the conditions of an aggressor’s terms of release with victims, helping to reduce “victim and family anxiety around the pretrial release of potentially high-risk partners.”

One case manager reported that the tool helped her talk to victims “in a way that she [the victim] feels free to express herself of how fearful she is,” adding “it makes me acutely aware that we’re in a position to make things fair on both sides.”

 Early analysis of the program showed that it resulted in a drop in the use of detention as a single intervention for IPV aggressors; the number of IPV cases assigned to pretrial supervision in the community also increased 6 percent.

The Safety and Justice Challenge Innovation Fund was designed, according to its website, “to create space for 20 jurisdictions to “test bold and innovative ideas on how to safely reduce the jail population while maintaining or enhancing public safety.”

 Other case studies in the series looked at:

  • “Front-end diversion” programs instituted by Deschutes County, Oregon, to help people suspected of possession of a controlled substance avoid prison time; and by Summit County, Ohio, to issue summonses in lieu of a custodial arrest for people facing nonviolent, low-level felony charges.
  • Data integration programs developed by Pennsylvania’s Allegheny County, Pennsylvania;, and the City and County of San Francisco, California, aimed at bringing together information from both criminal justice and non-justice sources systems to help courts, police departments, sheriff’s departments, prosecutors and defenders coordinate their decision-making;
  • “Interface” programs using the so-called “Sequential Intercept Model” in Colorado, South Dakota and Washington State to guide justice authorities in meeting the behavioral health needs of justice-involved individuals.

Detailed descriptions of the Urban Institute case studies released so far can be accessed here.

See also: The Challenges of Prison Alternatives for Women in Rural Communities

Stephen Handelman is editor of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org

The ‘Legal Culture’ That Blocks Rural Jail Reform

A Circuit Court judge’s reluctance to adapt reforms to money bail and other court procedures stands in the way of reducing jail overcrowding in rural Kentucky, according to a study commissioned by two county governments. 

The nation’s rural jails face a systemic problem of overcrowding that is usually blamed on lags in jail construction or outdated facilities, but a recent report in Kentucky has placed the responsibility squarely on a single circuit-level judge.

A comprehensive study of the criminal justice system in Boyle and Mercer counties—located in the middle of the state—singled out the “discriminatory” bond practices and lethargic case-processing times at Kentucky’s 50th Circuit Court as the source of the problems at the Boyle County Detention Center.

The jail is stuffed with pretrial felony defendants who can’t afford their bonds and must wait months to resolve their cases, according to the blunt assessments of consultant Dr. Allen Beck in chapter two of the 106-page “Jail and Justice System Assessment.”

The report, which is still in draft form, was commissioned by Boyle and Mercer counties to help them address the jail’s constant overcrowding and ballooning budget. Consultants hired by Brandstetter Carroll have gone over tens of thousands of documents and jail records and conducted dozens of interviews with people involved in the local criminal justice system at every stage — except, notably, not with any judges.

“Unfortunately, the Circuit Court Judge (Darren Peckler) refused to participate in the study and prohibited the District Court Judge (Jeff Dotson) from participating,” the report states.

Darren Peckler

Chief Circuit Court Judge, Kentucky, Darren Peckler.Photo courtesy The Advocate Messenger

Beck’s assessment in chapter two points a finger squarely at many practices of 50th Circuit Court Judge Peckler. It blames Peckler’s practices of requiring cash bonds; setting limits on the number of pleas he will hear; revoking bonds when defendants are indicted; and not offering bonds to participants in a new “rocket docket” program, among other things.

“The analysis in this chapter disclosed that case processing issues in the circuit court has been a major contributor to jail overcrowding. Resolution of some issues may be easier than others,” the chapter’s conclusion states.

“… Of all of the recommendations in the entire project report, those in this chapter have the greatest potential to substantially reduce the jail population.”

Non-Financial Bonds

The use of financial bonds — requiring defendants to pay money to leave jail — is a major contributor to the jail’s population, the report finds. Data in the report from Kentucky’s Administrative Office of the Courts shows that defendants in Boyle and Mercer counties are able to leave jail without paying money at far lower rates than in comparison counties selected for the study.

Judges in Clark County, on the other side of Lexington, let defendants out on non-financial bonds 18 percent of the time over the last eight years, according to the data. In Woodford County to the north, it was 25 percent; in Harlan County in eastern Kentucky, it was 55 percent. In Boyle County, it was four percent; in Mercer, three percent.

The data show non-financial bonds have been all but unused in the 50th Circuit Court, even though “research shows that financial/secured bonds are no more effective than non-financial bonds,” the report states.

“It is difficult to avoid coming to the conclusion that the circuit court judge does not believe in non-financial bonds,” the report reads.

The report does note a “major decline in the jail population in the last several months,” which it attributes to the public defender’s office and defense attorneys “advocating for the pretrial release and use of non-financial bonds during circuit court arraignment.”

“It is not uncommon for changes in court-related practices to begin changing during criminal justice system studies,” the report states.

“The increased attention on case processing can act as a stimulus for members of the system to reconsider habits and expectations that have become ingrained in how they process cases and interact with the court.”

Despite the recent improvement, the report says there is still a “local legal culture in which members reinforce their belief (in financial bonds) through interaction with each other.”

“There is a glaring issue that must be addressed. That issue is the belief that the amount of money bail controls behavior. This belief is not only reflected in the actions of the circuit court judge, but in other members of the criminal justice system,” the report reads.

“… It is a strong dynamic that sometimes is only overcome by replacing the players. Rather than advocating their replacement, the consultant recommends bringing in one or more informed persons from the Pretrial Justice Institute to make a presentation or hold a workshop for criminal justice officials on this issue.”

According to the Pretrial Justice Institute, “unsecured (non-financial) bonds are as effective at achieving public safety as are secured (financial) bonds.”

Financial bonds also do not improve appearance rates in court, while non-financial bonds “free up more jail beds,” according to a study by the institute.

The Brandstetter Carroll report also notes that financial bonds can be “discriminatory” because “economically able defendants are able to post bond, while the less affluent stay in jail.”

“Many court cases and a volume of research attest to the discriminatory nature of blanket application of secured bonds,” the report states.

Requiring cash from poor people to get out of jail can cause defendants to plead guilty to crimes they didn’t commit in order to speed things up, the report states.

According to the Pretrial Justice Institute, “unsecured (non-financial) bonds are as effective at achieving public safety as are secured (financial) bonds.” Financial bonds also do not improve appearance rates in court, while non-financial bonds “free up more jail beds,” according to a study by the institute.

The Brandstetter Carroll report also notes that financial bonds can be “discriminatory” because “economically able defendants are able to post bond, while the less affluent stay in jail.”

“Many court cases and a volume of research attest to the discriminatory nature of blanket application of secured bonds,” the report states.

Requiring cash from poor people to get out of jail can cause defendants to plead guilty to crimes they didn’t commit in order to speed things up, the report states.

Rocket Docket and Indictment

A January order signed by Peckler has limited the effectiveness of a new “rocket docket” program in Boyle County, the report finds.

The grant-funded rocket docket program is designed to expedite low-level drug and drug-related offenses and reduce “unnecessary incarceration time for low-level drug and drug-related offenders,” according to the report.

But Peckler’s order requires that if any defendant opted to participate in the rocket docket program, the county “shall issue a bench warrant with no bond until said case has been reviewed by the court.”

This order “seems to be counterintuitive” since defendants could be expected to be more compliant with bond conditions if they have the chance to resolve their cases more quickly, the report states.

“On the other hand, this order is in keeping with the judge’s practice of revoking the release of all felony defendants after being indicted by the grand jury, regardless of their success in compliance with release conditions.”

As a result of Peckler’s order, the rocket docket program “has been very minimally utilized,” according to the report. “Interviews with attorneys in Boyle County found that they discourage their clients from pursuing the rocket docket option.”

rural jail study

Jail consultant Dr. Allen Beck presents draft findings from a “Jail and Justice System Assessment” to officials from Boyle and Mercer counties. Photo by Ben Kleppinger/The Advocate-Messenger.

The public defender’s office estimates that “about 80 percent of felony cases in Boyle County could potentially be rocket docket cases since they fall into the non-violent, non-sexual Class D category,” according to the report.

Peckler’s practice of setting new bonds for defendants after indictment is another target of the report.

In the 50th Circuit Court, after a grand jury issues an indictment, “the circuit court judge rejects most or all previously set bonds by the district court judge” and sets new bonds, typically of $5,000 cash for a Class D felony and $10,000 cash for a Class C felony, according to the report. “… The judge is, in essence, acting as a magistrate to set bonds anew.

In doing so, he is disregarding the evidence of success of defendants who appeared in court and remained crime-free while out on pretrial release under bond set by the district judge. As a result, more defendants cannot afford the new bond.”

The report continues, noting again the advocacy by defense attorneys in recent months for more non-financial bonds.

“The attorneys have addressed Kentucky Court Rules that emphasize pretrial release and the use of non-cash bonds,” the report reads. “As a result, the circuit court judge has altered his pattern of setting bonds.”

Case Processing

The report also documents numerous ways in which circuit court policies slow down the processing of criminal cases, in many cases causing defendants to wait in jail for a month or more before an appearance.

There is only one plea day set every month and “the judge sets a cap of 25 cases in the morning and 25 in the afternoon,” the report states.

“If the number of defendants exceeds that number, the defendant has to wait another month. In some instances, heavy caseloads have resulted in waiting for two months.”

After a defendant is charged, they must be arraigned. In Boyle and Mercer, there’s one arraignment date every month. But someone arrested shortly before that arraignment date isn’t allowed to be arraigned right away; they have to wait for the next month’s arraignment.

There were people arrested after May 31 this year who were not on the June docket and had to wait until July 3 for arraignment — “a delay of 32 days,” the report explains.

The circuit court further slows down the process by not transporting incarcerated defendants for every status hearing in their case, according to the report:

“If defendants were present for all court hearings, negotiations could occur continually in the courtroom as the docket progressed. That would result in many cases being resolved at that time.

However, under current court practice, jail inmates are not brought to court for status hearings. As a result, nothing other than continuances occur. To accommodate all individuals on the docket being present for all hearings, court sessions would need to be held more frequently and the judge would have to be willing to work past five o’clock on some occasions, which is a common practice in other jurisdictions.”

The report makes seven recommendations for changes concerning criminal case processing.

They include:

  • the Pretrial Justice Institute should be brought in to address use of non-financial bonds;
  • the no-bond requirement for the rocket docket program should be ended;
  • “The revocation of bonds set by the district court after grand jury indictment should be substantially altered, if not dropped as a practice;”
  • the circuit court should add a new court date each month to allow for faster processing;
  • the circuit court should allow defendants to enter pleas at any time, instead of only on specific court dates — or at least add additional plea dates;
  • the circuit court should no longer limit the number of pleas it will hear to a specific quota; and
  • the circuit court should transport all defendants who are in jail for all court hearings so in-court negotiations can happen more frequently.

The report notes similar problems with non-financial bonds and case-processing speeds at the district court level, but finds that misdemeanor defendants make up a smaller portion of the jail population and have their cases resolved more quickly.

“Detention of persons charged with misdemeanor offenses has a much smaller impact on the jail population.”

The Advocate-Messenger offered Judge Peckler a chance to respond to the findings in the report.

Ben Kleppinger, a staff writer for The Advocate-Messenger, is a 2018 John Jay Rural Justice Reporting Fellow. This slightly edited and condensed version of the original published article is the second in a series of reports on the Kentucky jail system prepared for his Fellowship project. The first report is available here. Readers’ comments are welcome.

from https://thecrimereport.org

California Scraps Cash Bail to ‘Treat Rich and Poor Fairly’

California will become the first state to end money bail under a new law that will take effect in October, 2019. Under the measure, courts will use algorithms to decide who needs to be kept in custody ahead of trial—but critics, including the ACLU, say the new system may perpetuate discrimination. 

California will become the first state to abolish money bail for suspects awaiting trial, under a sweeping reform bill signed by Gov. Jerry Brown , reports NPR.

The measure, due to take effect in October 2019, means defendants will no longer be required to put up money or borrow it from a bail bond agent in order to secure release ahead of their trials. Instead, courts will use algorithms to decide who to keep in custody and who to release pending disposition of the case.

Gov. Brown, who has been pressing for bail reform for nearly four decades, said the California Money Bail Reform Act will ensure “that rich and poor alike are treated fairly.”

But many critics, including the American Civil Liberties Union (ACLU), said they were disappointed that the measure didn’t go far enough—and could further worsen racial bias and economic inequities in the courts.

“They took our rallying cry of ending money bail and used it against us to further threaten and criminalize and jail our loved ones,” Raj Jayadev, co-founder of advocacy organization Silicon Valley De-Bug, and a former supporter of the bill,  told the Sacramento Bee.

Under the Act, in most nonviolent misdemeanor cases, defendants would be released within 12 hours. Other defendants will be scored on how likely they are to show up for their court date, the seriousness of the crime, and the likelihood of recidivism.

The ACLU pulled its support, arguing that last-minute changes give judges too much discretion.

On the other side of the argument, the American Bail Coalition, which represents bail providers,  likely will challenge the law in court

Bail reform has gotten increased traction across the U.S.

Washington, D.C., already has a cashless bail system. Some states, including New Jersey, have passed laws that reduce their reliance on money bail. Other states are considering making similar changes.

At a meeting last spring, policies of prosecutors elected on progressive platforms around the U.S. were praised for showing promise to reduce the nation’s incarceration totals,

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff  in March to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

See also Cherise Fanno Burdeen in TCR, “Is a Common Sense Approrach to Bail Reform Finally gaining Traction?

At the federal level however, bail reform still appears to be stalled.

Senator Bernie Sanders (I-VT) introduced legislation earlier this year that would end money bail on the federal level and incentivize states to do the same.The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.

from https://thecrimereport.org

Houston Judges Move to Halt Bail Reform

Over a dozen Houston judges are appealing a federal judicial order forcing the prompt release of most misdemeanor defendants within 24 hours of arrest. The injunction went into effect last June.

Misdemeanor court judges in Houston, Texas, appealed to a Fifth Circuit panel on Tuesday to scrap judiciallyimposed bail reform, which they claim has caused a spike in people failing to appear in court, the Courthouse News Service reports.

In a motion to stay, fourteen Harris County criminal court judges allege that U.S. District Judge Lee Rosenthal compromised public safety when she ordered the county to release poor misdemeanor defendants from jail. Since Judge Rosenthal’s preliminary injunction took effect in June 2017, the county’s failure-to-appear rates have “skyrocketed,” the judges say.

Harris County is Texas’s most populous county, with more than 4.5 million residents. It is also home to the third largest county jail in the country.

In the spring of 2017, Rosenthal found that Harris County’s bail system violated the due process and equal protection rights of indigent defendants by favoring those who can afford to pay to get out of jail. She issued an injunction that she then narrowed in July after a Fifth Circuit panel ruled that even though the Harris County bail system is unconstitutional, her order amounted to an impermissible automatic right to pretrial release for misdemeanor defendants.

Bail reform has been gaining traction nationwide in recent years. Varying degrees of reform have been implemented in New Jersey, Alaska, Maryland, and New Orleans, and since January 2016, federal class action lawsuits have been filed in Dallas, Galveston, and Lafayette, Louisiana, challenging county bail systems.

See also: Wrongful Misdemeanor Convictions: Who’s Counting?

But the case in Houston demonstrates that strong opposition remains to the elimination of cash bail.

Alec Karakatsanis, the founder of the Washington, D.C. nonprofit firm Civil Rights Corps and the lead attorney challenging the bail system in Harris County, rejected claims that Rosenthal’s initial injunction endangered public safety. He said that the county has provided no evidence that people released on cash bond are more likely to show up for court than those released pretrial on unsecured personal bonds.

In fact, he said, pretrial detention increases failure-to-appear rates and the likelihood a defendant will commit crimes in the future.

The judges in the case did not say when they would rule on the emergency motion to stay.

from https://thecrimereport.org

Is a ‘Common Sense’ Approach to Bail Reform Finally Gaining Traction?

A recent national poll of 1,400 voters shows nearly one in five respondents want to scrap the current money bail system. That should send a message to policymakers that voters are willing to accept alternatives that limit arrests and incarceration for nonviolent offenses, writes the CEO of the Pretrial Justice Institute.

Only three percent of federal and state criminal justice cases result in a trial. The rest—97 percent—are settled pretrial, often by plea bargain.

Three percent is a shocking figure for a nation that considers trial by a jury of peers a fundamental right. Our rhetoric clearly is not aligned with reality.

A new national poll on pretrial justice, independently analyzed by the Pretrial Justice Institute and the Charles Koch Institute, shows Americans want to close the gap between how we talk about justice and what we deliver. The survey of 1,400 registered voters, conducted in May 2018, reveals that voters across a broad demographic and geographic spectrum believe the system needs to change.

Only six percent of respondents were satisfied with the status quo. Nearly one in five would scrap the current system and start over.

The U.S. criminal justice system is a maze: Once someone’s in, it’s hard to get out—and pretrial is the front door. Our analysis of the data reveals that while there is ample room for the public to learn more about pretrial processes and procedures, voters intuitively recognize a need to reduce unnecessary arrests, restrict the use of jail pretrial, replace money bond, and raise equity.

Moreover, as they learn about the common-sense solutions available, their support grows.

One of the biggest takeaways from the poll is that Americans want to reduce the number of people entering the system by adding alternatives to arrests and limiting the use of jail except as needed for public safety.

Seventy-three percent of respondents—87 percent among black voters, 75 percent among Latinx voters, and 71 percent among whites—favor reducing the number of arrests for low-level, nonviolent offenses. Seventy-six percent indicate that citations informing people of their obligation to appear in court would be a better response to low-level, nonviolent offenses than arrest.

Similarly, while 83 percent of survey respondents would allow judges to detain a person charged with a serious violent crime when necessary for public safety, respondents want limits on the system’s ability to jail people whose alleged guilt has not been proved—especially those charged with minor offenses.

Only 36 percent would allow courts to hold arrested people regardless of the severity of their charges. Voters by a two-to-one ratio think prosecutors should bear the burden of showing that a person should be in jail before trial.

One reason the system currently defaults to jail upon arrest is the use of money bond, which requires arrested people to pay money to be released before trial. Given this obvious bias toward those with money, it should not be surprising that 79 percent of respondents think the wealthy enjoy substantially better outcomes from the criminal justice system than do poor and working-class Americans.

Seventy-two percent of respondents think public safety should be the primary consideration, instead. The same percentage, 72 percent, would limit how many days people not charged with serious violent crimes can remain in jail before trial if they cannot afford money bond.

Perhaps the biggest surprise from our analysis is the support we found for services to help arrested people succeed in the community. More than three out of four voters would provide support services for people awaiting trial in the community who have substance-use difficulties.

Nearly nine out of 10 would provide support to people awaiting trial who are victims of domestic violence or who have mental health needs.

More than 60 percent of the people in U.S. jails and prisons are black or Latinx. Studies have found that black Americans face higher bail amounts and are less likely to be released on non-monetary conditions than similarly situated white individuals.

Other research indicates that being black can increase an arrested person’s odds of being held in jail by 25 percent.

Fifty-six percent of those polled believe whites have better outcomes from the system, with 78 percent of black voters, 74 percent of Latinx, and 50 percent of white voters in agreement. Asked which was fairer to people of all races, money bail or community supports—such as court reminders and referrals to services, as well as supervision—nearly half of all respondents, or 48 percent, favored supports; just 29 percent felt money bail was fairer.

But there is still a long way to go to educate the public on this issue.

Despite the media’s increased coverage of pretrial and money bail in recent years, 51 percent of respondents said they know only a little or nothing at all about money bail. The silver lining was that, over the course of the poll, as people learned more about the alternatives to money bail, their support for moving away from financial conditions of release increased.

Cherise Fanno-Burdeen

This survey holds important lessons for stakeholders and lawmakers. The public wants change. In contrast to current practice, Americans would like pretrial systems to default toward release before trial except when necessary for public safety, and they favor community-based supports for those who are unlikely get arrested on new charges but may need help getting to court.

Jurisdictions and states contemplating change should be fortified by the knowledge that people are ready to support common-sense change.

Cherise Fanno Burdeen is the chief executive officer of the Pretrial Justice Institute. She welcomes comments by readers.

from https://thecrimereport.org

As Federal Bail Reform Stalls, States and Cities Act

Senator Bernie Sanders (I-VT) has introduced legislation that would end money bail on the federal level and incentivize states to do the same. Federal bail reform seems likely to stall; meanwhile, Robin Steinberg of the Bronx Defenders has set up a national bail project to help poor clients win pretrial release.

Senator Bernie Sanders (I-VT) has introduced legislation that would end money bail on the federal level and incentivize states to do the same.

The No Money Bail Act would prohibit the use of cash bail in federal criminal cases, provide grants to states that implement alternate pretrial practices, and withhold grant funding from states that continue to utilize cash bail.

“It has always been clear that we have separate criminal justice systems in this country for the poor and for the rich,” reads Sanders’s summary of the bill. “A wealthy person charged with a serious crime may get an ankle monitor and told not to leave the country; a poor person charged with a misdemeanor may sit in a jail cell.”

“And this disproportionately affects minorities—fifty percent of all pretrial detainees are Black or Latinx.”

The No Money Bail Act is not the first push within Congress to tackle pretrial practices. Previous efforts, such as the measures introduced by Representative Ted Lieu (D-CA) in 2016 and 2017 and the Pretrial Integrity and Safety Act sponsored by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) last year, have stalled, making it unlikely that Sanders’s bill will receive the necessary traction to become law.

Even if Congress fails to act, bail reform is slowly gaining ground in cities and states around the U.S., partly through the work of advocates like Robin Steinberg.

Last November, Steinberg launched The Bail Project, a five-year, $52 million plan to bail out 160,000 people in more than 40 locations, starting with New York City.

Steinberg got the idea to start a bail fund while working as a public defender, she told the Christian Science Monitor. As an attorney with the Bronx Defenders, she saw every day how cash bail hampered clients who couldn’t afford to pay to get out of detention.

Bail is meant to serve as an insurance policy for courts: defendants either await disposition of their cases behind bars, ensuring that they will show up, or post bail and (presumably) return to retrieve the money they posted.

Reformers claim that the practice is discriminatory, keeping poor defendants who are often charged with low-level crimes behind bars while their well-heeled counterparts go free. In 2007, Steinberg launched the Bronx Freedom Fund, a revolving nonprofit fund for poor people being held in jail before trial.

By bailing clients out for $768 on average, Steinberg enabled them to go home to their jobs and families and fight their cases free. Once clients’ cases have been heard, the bond money returns to the fund, with each dollar circulating more than twice a year.

Steinberg found that freedom made all the difference: more than half of the cases resulted in all charges being dismissed, while others ended in noncustodial sentences. Only two percent of clients were sentenced to jail for the original charges.

Understanding the scale of pretrial incarceration – 450,000 people await trial in local jails on an average night, most of whom are too poor to pay bail – Steinberg knew her work couldn’t stop with the Bronx. She created the Bail Project to bring the initiative to a national scale.

Since its founding, the Bail Project has set up funds in Tulsa, Ok., St. Louis, Detroit, and Louisville, Ky., hiring local “bail disrupters” to track and assist low-income defendants.

The organization was chosen this year as a TED Audacious Project, which pools money from philanthropists for “big bets” on ideas with broad social effect. The Bail Project will receive $24 million over five years, while Steinberg continues to raise money to expand its reach, Anna Verghese, who runs the Audacious Project told the Monitor.

Revolving bail funds such as the Bail Project have decarcerated hundreds of thousands of individuals, but they do not address the underlying issue: federal, state, and county policies putting a price on a person’s freedom while he or she remains innocent in the eyes of the law.

Among major jurisdictions that have made changes, New Jersey’s Criminal Justice Reform Act largely eliminated cash bail within the state starting in January 2017; Washington, D.C., has long relied upon risk assessment tools to determine who is detained pretrial; District attorneys in Brooklyn and Manhattan in January ordered prosecutors not to request bail in most misdemeanor cases; and Philadelphia District Attorney Larry Krasner put an end to cash bail requirements for low-level offenses in February.

from https://thecrimereport.org

Incarceration Decrease? Drop in Prison Numbers Called ‘Anemic’

Although the US prison population has begun to decline, researcher Malcolm C. Young says the rate of decrease is so low that the goal of prison reformers to cut prison populations by half would unlikely be reached until 2068.

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year—more states than had experienced decreases in any recent year. The average decrease was three percent.

In 42 states, prison populations were lower than they had been recently. Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations.

If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like #Cut50.org to reduce prison populations to half of what they are today for another 50 years, until 2068.

Moreover, the current rate of decrease may not hold, according to Young.

The prospects for a more rapid de-incarceration are poor unless and until many more states use strategies that have been effective in the handful of states that are significantly reducing prison numbers, Young believes.

Only 13 states have significantly reduced their prison populations below the levels they were at the end of 2000. Seven of those 13 states accounted for most of the national inmate population drop.

California, Connecticut, Illinois, Maryland, Michigan, New Jersey, and New York reduced their collective prison populations by 73,328 between 2000 and 2016, accounting for about two-thirds of the total by which all states reduced prison numbers.

Another 14 states have at times demonstrated a capacity for reducing prison populations.

The experiences in both sets of states show that reductions at rates of three to five percent annually, and even higher, are well within reach of governments motivated to act, Young writes.

The federal prison system, the nation’s largest, contributed to the national decrease. Its population at the end of 2016 was 13 percent under its highest point, in 2011.

Young found that prospects that most of the 13 states responsible for much of the national decrease will continue to reduce their prison populations are good.

For example, Massachusetts has the second-lowest incarceration rate in the nation (after Maine), and the Vera Institute of Justice predicts further decreases. New Jersey will likely continue to reduce its prison population as a result of pretrial reforms signed by Gov. Chris Christie that took effect last year.

In New York State, further decreases are likely if officials can encourage fewer prison commitments from areas outside of New York City.

On the other hand, California, which decreased its prison population by 40,926 in six years to comply with a US Supreme Court ruling, increased its prison population in 2016 by 0.9 percent. California corrections officials predict an annual 0.8 percent increase in coming years.

In Illinois, Gov. Bruce Rauner cut the prison population, incurring little opposition from the same Republicans who savaged his Democratic predecessor’s more modest efforts. Were he to lose his bid for reelection, it is not a given that a Democratic administration would carry his plan forward.

Since 2010, Texas decreased its prison population by 6,749 (4.1 percent). Prospects that the trend will continue are iffy because state legislators have been considering new sentencing enhancements.

Young found that decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.” Recently enacted reforms have encountered opposition.

In Louisiana, advocates have been concerned that legislators will roll back recently enacted reforms designed to reduce incarceration. In Utah, reforms that relied on treatment and housing programs are at risk because of a lack of funding for alternative programs. In Florida, legislative reforms have not led to the reductions in prison populations for which advocates hoped.

In the federal system, prospects for continued decreases are fading. A bipartisan reform bill that would have reduced some federal sentences seems stalled, while prosecutorial and sentencing policies announced by Attorney General Jeff Sessions will soon add to the prison population.

Young’s report identifies a third group of 23 states that have yet to demonstrate a capacity to reduce prison populations. At the end of 2016, their combined prison populations were 86,866, or 31 percent higher than at the end of 2000.

The report recognizes that new developments might bring significant reductions in prison numbers.

The election of reform prosecutors like Larry Krasner in Philadelphia and Kimberly Foxx in Cook County, Illinois, signal a voter rejection of “tough on crime” and “lock-em-up” policies that have driven incarceration.

Another development lies in an emerging appreciation of the relationship between local jail incarceration and prison numbers by the MacArthur Foundation, which is funding local justice reform through its Safety and Justice Challenge. Were bail reform to spread, there would likely be a significant reduction in prison numbers as well as in jail counts.

Similarly, reforms in policing should reduce the use of jails and, indirectly, the number of people who are sentenced to prison.

The report concludes that if California and the federal system increase their prison populations, it will be difficult to sustain the current rate at which prison populations are decreasing.

Young calls for reexamining the effectiveness of prison-reduction strategies.

“[Hopes to] to end mass incarceration can’t be grounded in a fiction that an annual one percent reduction in prisoners will get us anywhere, or that limited successes in a few jurisdictions will end mass incarceration in the country as whole.”

His report contends that national, state and local officials should turn for guidance to states that have achieved significant, lasting reductions in prison incarceration and steer clear of approaches that have failed to produce results.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. He welcomes comments from readers.

from https://thecrimereport.org

Richmond Pushes Away from Cash Bail, Joining Trend

Michael N. Herring, the Virginia city’s top prosecutor, said his staffers will now recommend release without bail for most defendants. He said the cash bail system “strikes me as unfair” and does not ensure that accused criminals will appear in court.

Richmond, Va., has joined a growing number of American cities and states that are abandoning cash bail for many criminal defendants. The city’s Times-Dispatch reports that Richmond prosecutors will no longer seek cash bail bonds for many of those awaiting trial. In theory, the cash investment by defendants ensure their good behavior and their presence at trial. But Richmond Commonwealth’s Attorney Michael N. Herring said, “It strikes me as unfair, and it doesn’t ensure anything.” Prosecutors in his office are now instructed to make a good-faith assessment of a defendant’s risk to the community. “If they don’t believe the person poses an unacceptable risk of harm, then they are to recommend [to the judge] release with appropriate pretrial conditions,” he said.

If a prosecutor believes a defendant poses an unacceptable risk, then they are simply to recommend that the person be confined to jail, Herring said. Bill Farrar of the ACLU of Virginia said, “There’s plenty of anecdotal research to show that the cash bail system is slanted against people of color and people who don’t have the ability to pay.” Many states and cities have instituted bail reforms, although some are considering restoring cash bail in some instances after criticism that the reforms are too lenient.

from https://thecrimereport.org

Legislation Alone Won’t Decarcerate America, Warn Advocates

Reducing US prison populations requires a strategy that engages all the players in the justice system, from courts to community residents to the media, a panel at NYU’s Brennan Center for Justice was told.

Changing state and federal guidelines on sentencing and bail won’t be enough to reduce America’s prison population, according to two of the nation’s foremost advocates for justice reform.

“It’s going to involve litigation, it’s going to involve organizing, it’s going to involve academia, (and) it’s going to involve elevating and honoring the voices and efforts of those who are most impacted by the system,” says Robin Steinberg, a co-founder of the Bronx Freedom Fund, which has been a prominent player in the movement for bail reform in New York City.

“There is no one strategy that works,” Steinberg, who is now CEO of The Bail Project , a national effort to reduce racial inequities in bail, told a panel last week at the NYU School of Law’s Brennan Center for Justice.

“So it’s going to involve the media, it’s going to involve certain communications strategies….whatever leads us to change the narrative.”

Judith Greene

Judith Greene. Photo by John Ramsey/TCR

Steinberg’s comments were echoed by Judith A. Greene, a former Soros Senior Justice Fellow and contributor to the new book, Decarcerating America: From Mass Punishment to Public Health, who described how a combination of “organizing, litigation, public education, and ballot measures” was responsible for a 31 percent decline in New Jersey’s prison population between 1999 and 2014—one of the highest decarceration rates in the country.

New Jersey’s effort began with “litigation against a parole board that wasn’t doing its job,” received a boost from a report by the Families Against Mandatory Minimums (FAMM) group advocating the elimination of  mandatory-minimum drug sentences, and was reinforced by changes in plea guidelines established by the state attorney general’s office, Greene said.

“Then finally about three or four years ago, about the same time New York dropped the Rockefeller Drug Laws, the state legislature essentially took the last legal legs out from under the drug school zone laws,” she added.

“So it was a combination….they didn’t have ballot measures, but they had organizing, they had civic engagement. And they had an elite body in the state’s highest court pushing to effect major drug reform.”

Speaking about bail reform, Robin Steinberg commented that the Bronx Freedom Fund, founded in 2005, was borne out of frustration “at watching bail get set on clients, and watching our clients get hauled into jail cells and the inevitable plea of guilty…and at some point my co-founder said we should just start a bail fund to bail people out.”

It took the Bronx Freedom Fund two years to find Jason and Joe Flom, the primary investors in their project. The fund finally took off in 2007 and began to bail people out.

“The lawyers in the Bronx Defenders would refer clients that they thought would be eligible for the bail to the Bronx Freedom Fund,” she said. “The [fund] would then do an interview and began to pay bail.”

What the Bronx Freedom Fund learned after being in operation for eleven years “exploded our beliefs” about bail, Steinberg said.

Counter-intuitively, the results of the Bronx Freedom Fund showed that people do come back to court even when their cash isn’t at stake.

“Once we started using donated dollars to pay people’s bail and we began to learn that 96 percent of our clients came back to court even though it wasn’t their money, and they had nothing at stake in terms of the money,” she continued. “[That] kind of exploded our ideas about money being an incentive to bring people back to court.”

Freedom Fund staff discovered that “97 percent of clients held on misdemeanors in The Bronx were pleading guilty, and when we paid people’s bail with philanthropic dollars, what wound up happening was almost half the cases got dismissed,” said Steinberg.

“The majority of the other half of the cases wound up in non-criminal dispositions—which have far fewer collateral consequences.”

The strategy of paying for defendants’ bail utilized by the Bronx Freedom Fund is known as a revolving-bail system.

The panel, titled “Decarcerating America,” was moderated by Nicole Fortier, Counsel at the Brennan Center for Justice Program.

In another, earlier, example of a multi-pronged decarceration approach, Greene described how New York City evolved from a gang enforcement strategy, which had led to the over-incarceration of youth in poor, minority neighborhoods during the 1950s, to programs involving street workers who could help young people find alternatives to gang involvement.

After reform-minded Mayor John Lindsay was elected in 1966, “the city…. listened to sociologists who said this was a youth problem more than a crime problem, pointing out that most kids who are in gangs are not marauding and shooting people,” she said.

New York began applying a “social intervention” strategy that involved a range of innovative approaches, including hiring former gang leaders as mediators.

As a result, said Greene, New York was able to avoid the kind of gang violence that plagued Chicago and Los Angeles.

Officials in many cities across America still haven’t picked up on the lesson, she said.

“It breaks my heart to see the gang enforcement strategy travel east,” said Greene.

Files for this story were provided by TCR news intern John Ramsey. Readers’ comments are welcome.

from https://thecrimereport.org

‘Smarter Justice,’ Bail Reforms Make Headway Across U.S., Advocates Say

Progressive prosecutors and scientific pretrial release systems are reducing jail populations, say Jeremy Travis of the Laura and John Arnold Foundation and Maryland Attorney General Brian Frosh. New policies by newly elected Philadelphia DA Larry Krasner, including decriminalizing marijuana possession, were cited as examples.

Policies of prosecutors elected on progressive platforms around the U.S. show promise to reduce the nation’s incarceration totals, two experts told a gathering of state attorneys general.

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff last month to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

During a discussion of bail reform, Travis questioned why suspects charged with misdemeanors “should be put in jail [pretrial] if the typical sentence is non-custodial.”

Another panelist at the meeting, Maryland Attorney General Brian Frosh, described the new prosecution trend in some cities as “smarter justice.”

Frosh noted that since 2013, police in his state have been empowered to issue citations instead of arresting people for many lower-level offenses, a change he said has “reduced the workload for judges, police and prosecutors.”

Travis and Frosh spoke on a panel Friday in Washington, D.C., at a conference organized by D.C. Attorney General Karl Racine for the National Association of Attorneys General on “Reducing Violence: Innovations That Work.”

Their main subject was efforts around the nation to eliminate or reduce the use of cash bail and base pre-trial release decisions on a scientific assessment of the risk that defendants will commit more crimes or fail to make future court appearances if they are released.

Maryland’s Court of Appeals last year overhauled the state’s bail system, requiring judges to consider whether defendants are able to make a bail payment when they set conditions for release.

Under the change, about one-fifth of defendants are being held because they can’t or don’t pay bail, down from 40 percent in the months before the reforms were enacted, chief state district judge Judge John Morrissey said in January.

Attorney General Frosh said on Friday that the policy shift has resulted in a six percent decline in the state’s jail population. “Overall, more people are being released,” he said.

Frosh was a proponent of bail reform when he served as a state senator. He persuaded his fellow senators to approve a reform plan but it “crashed and burned” in the other legislative body, the House of Delegates, amid opposition from the bail bond industry.

After he was elected Attorney General, Frosh took another tack–asking the state judiciary to impose the same kinds of changes he had advocated as a legislator.

Preliminary results show that the changes have worked so far, with defendants returning to court and committing new offenses after release at about the same rate as they did under the previous system, Frosh said.

Attempts by bail bondsman in the legislature to reverse the judicially-imposed policies have failed so far.

Travis said New Jersey has had a similar experience under a statewide change that went into effect last year, in which judges use an algorithm devised by his foundation to help make pretrial release decisions.

The initial results are “promising,” he said. The number of people charged with minor crimes who were locked up until trial because they couldn’t post bail fell by 20 percent in the system’s first year, found a report issued last month.

Travis acknowledged criticism that the new system perpetuates racial disparities in pretrial releases. Some say that more minorities continue to be denied release because risk assessment tools consider defendants’ prior criminal records, where minorities are disproportionately represented.

“It’s a tough one,” he said of the issue, which is still being studied.

Overall, Travis contended, it is good that more attention is being paid to the “profound” power of judges to decide on the pretrial release issue, which each year affects the family and employment situations of millions.

Seema Gajwani of the D.C. Attorney General’s office, who advocated for bail reform previously at the Public Welfare Foundation, told the conference that 11 million people in the U.S. cycle in and out of jails each year and that even having to serve a few days in jail after arrest can be “incredibly destabilizing” for many defendants.

“The number one reason that people stay in jail is that they are poor,” she said.

Although most of the discussion focused on low-level offenders, Frosh contended that the cash bail system doesn’t make much sense for alleged serious offenders, either.

He noted that the process essentially allows judges to set a money amount that defendants can pay to win release and “continue to wreak havoc.” The current bail system used in most of the U.S. “doesn’t make sense at any level,” Frosh said.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. Readers’ comments are welcome.

from https://thecrimereport.org