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Radio Program available at http://media.csosa.gov/podcast/audio/2014/05/pretrial-america-pretrial-justice-institute-pretrial-services-d-c-national-award-winner/
[Audio Begins]
Len Sipes: From the nation’s capital this is DC Public Safety. I’m your host Leonard Sipes. Today’s show, ladies and gentlemen, pretrial in America, and a topic that I think has great importance to each and every one of us in the criminal justice system. Cliff Keenan the Director for Pretrial Services for the District of Columbia, he’s here, www.psa.gov. Spike Bradford, he is the Director of Communications for the Pretrial Justice Institute, www.pretrial.org. And to Cliff and to Spike, welcome to DC Public Safety.
Spike Bradford: Thank you, Leonard.
Cliff Keenan: Glad to be here.
Len Sipes: All right, this is a topic that is misunderstood, this is a topic that I think a lot of people do not have a clear sense. But the bottom line behind the pretrial services movement in the District of Columbia and throughout the country is that the person is innocent until proven guilty. A wide variety of conferences, people came together back in the 60s to establish the fact that unless it’s necessary from a public safety point of view, a person should be released before trial. Am I right or wrong?
Cliff Keenan: Leonard, I think you’re absolutely right. In fact, the conference you’re referring to was convened by then Attorney General Robert Kennedy, who in May of 1964, so almost 50 years ago, convened judges, prosecutors, defense attorneys, scholars, academics to look at the issue of bail in America. And this is what he said on the opening day of that conference. He said, “There is a special responsibility on all of us here, a special responsibility to represent those who cannot be here, those who are poor, those who are unfortunate. The 1.5 million persons in the US who are accused of crime, who haven’t been yet found guilty, who are yet unable to make bail and serve a time in prison prior to the time that their guilt has even been established; for those people, for those who cannot protect themselves, for those who are unfortunate, we here over the period of the next three days have a special responsibility.” On the last day of that conference this is what he said. And keep in mind, this is Attorney General Robert Kennedy, and this is five months after his brother was assassinated –
Len Sipes: Right.
Cliff Keenan: Focusing America’s attention back then on the issue of bail in America. This is what he said, “What has been made clear today in the last two days is that our present attitudes towards bail are not only cruel, but really completely illogical. What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence, it is not the nature of the crime, it is not the character of the defendant, that factor is simply money. How much money does the defendant have?”
As a result of that conference, Congress back in 1966 passed the Bail Reform Act, which greatly changed at the federal level and for the District of Columbia the way persons were going to be treated in their pretrial context. They were moving away from money as being the sole determining factor and looking more towards whether or not a person posed a danger either to the community or a flight risk. As a result of the Bail Reform Act, the DC Bail Agency, the precursor to the Pretrial Services Agency, for which I’m now the Director, was created, and we have seen many changes over the years. And here in the District we’re happy to say that money is not a factor in terms of persons who’ve been charged with the crime but not convicted yet. Those persons are not being held at the jail because they don’t have money the way Bobby Kennedy recognized. Those persons are either detained because a judicial officer has found that the person is a flight risk or a danger to the community, or more likely, they’re released on personal recognizance or released to Pretrial Services and we provide the supervision and services that the need.
Len Sipes: And I do want to go over the fact that within the District of Columbia the people who remain arrest free for any crime, 88%, people who remain arrest free for violent crimes, 98%, people who make all scheduled point appearances, all scheduled court appearances, because there are many, 87%. Your statistics indicate that you can provide that constitutional mandate of innocence before guilt, of pretrial based upon dangerousness rather than the ability to post money, and at the same time, making sure that people show up and that they show up arrest free during that period of supervision. So the Pretrial Services Agency in the District of Columbia has proven itself time after time to be certainly one of the premier pretrial services agencies in the country.
Cliff Keenan: That’s correct. I mean we are unique, because we are a federal law enforcement agency, so we do receive our funding through OMB and from Congress. Unlike many other jurisdictions where either a county or state is responsible for this responsibility, under the DC Revitalization Act of 1997, our function, as well as probation, parole functions, the court functions, those all became part of the federal system. However, what we have found, as you point out, is the system that we have is not only fair to the individual arrestees, i.e. the defendants who are pending trial, but it’s also proven to be safe for the community as well as for the fair administration of justice.
Len Sipes: Spike Bradford, Director of Communications for the Pretrial Justice Institute, you’ve heard Cliff go off on his monologue, which I agree with. I buy into single word.
Spike Bradford: Absolutely.
Len Sipes: Do you have any response, any reaction?
Spike Bradford: Well, first of all I mean we know that DC Pretrial is a stellar organization in doing things that so many other jurisdictions across the country are not. And at Pretrial Justice Institute we typically frame the issue as what are the problems in pretrial in America, which, unfortunately, there are many, and what are the solutions. And there are two primary problems as we see them, both of which DC has been able to mostly overcome. The first one is that in jurisdictions across the country most of the detention and release decisions pretrial are based on money.
Len Sipes: Right. Now why is that? Considering everything that Cliff’s just run through, the majority of pretrial releases within the United States are not based upon dangerousness to the community, and not based upon a monetary bail, but in the majority of the country they are. So why is that? Is it the rest of country doesn’t get it?
Spike Bradford: I mean I wouldn’t say that they don’t get it, they just don’t get it yet, we hope in our work. We have a long history of associating money with pretrial release in this country and, unfortunately, we don’t have a huge bank of research that shows that that works. Really, when we do the research we find that there’s no correlation between the amount of money someone can pay to the court and the risk that they pose either of not coming back to court or being rearrested during the pretrial period. So, so much of the release and detention decision is made on money and not risk, which just has numerous outcomes, you’ve got over 60% of local jails in the country are full of pretrial detainees, those people who’ve been arrested and booked but not convicted of that charge yet. So that’s a lot. I mean that’s over 60% of people in jail who are also associating with convicted people in jail are of a pretrial status. But the converse side of that is that you have high-risk defendants, people who when we do test them score a higher risk of being rearrested or not showing up to the court, they’re getting out.
Len Sipes: Because they can make the monetary bail.
Spike Bradford: Because they pay their bail. Yeah.
Len Sipes: So then I mean in the District of Columbia we take a look at dangerousness and everybody else is taking a look at the dollar unless there’s a no bail provision?
Spike Bradford: I wouldn’t say everybody else. I mean there are definitely jurisdictions across the country, some states, some counties that are doing it closer to the way that DC does it. And that’s the way that we’re hoping things are moving across the country is that people are realizing, one, jail is expensive and our jails are full of pretrial detainees, so how can we change that, and two, there’s new science out that shows that so many high-risk defendants are getting out just because they pay their way. And there’s wonderful new research that shows that even a short stay in pretrial detention, one or two days, increases negative outcomes like being rearrested, recidivism, up to two years after your offense is cleared.
Len Sipes: But when we have 98% of people in the District of Columbia who have been charged with violent crimes, they remain arrest free through that process, 98%. I mean that’s basically showing that you can manage these individuals on pretrial and not have them get involved in a lot of crime. Some crimes it’s inevitable. Some of our people who are supervised by us on a pretrial basis or on a parole and probation basis, through my agency Court Services and Offender Supervision Agency, it’s inevitable that some individuals are going to find their way back into the criminal justice system by arrest during their periods of supervision. But this is astounding. 98% arrest free for violent crimes in the District of Columbia. So it can be done, it’s being proven in the District of Columbia. Is it a matter that we are federally funded, Cliff, and we have the resources and we have the staff and we have the ratios? We even have money for treatment. We have money that other pretrial agencies will never have. Is it a matter of money, or is it a matter of philosophy, is it a matter of management, or all three?
Cliff Keenan: I think it’s all three, but it’s also culture, Len. Many jurisdictions, as Spike alluded to, have been using a money bond schedule probably for generations, and it’s very hard for judges, many of whom in some jurisdictions are elected, so they’re worried about making a decision that a person who he or she releases may end up doing something bad on the outside. Many judges are probably reluctant to move away from a system that they have been using for many, many years. The Unites States and the Philippines, as far as I know, are the only two countries left in the world which still utilize some form of commercial surety. And commercial surety, for those who don’t know it, that’s where if a judge imposes a $5,000 bond and if the person doesn’t have the $5,000 personally they could secure the services of a commercial bond company to put up, usually for 10% of the bond amount, an insurance policy in order to get the person out of jail. So it’s very, very much a commercial activity, which has, again, been in place for many, many years. Our jurisdiction, Kentucky, Colorado, there are number of jurisdictions which are moving away from a straight up bond schedule. But once again, you’re dealing with judges and prosecutors and defense attorneys who are accustomed to doing things the way they’ve always been done and changing that culture along with having the resources to put in place probably contribute to some of the length of time it’s taken to get change.
Len Sipes: There’s a wide variety of organizations out there that have contributed to the pretrial movement since the 1960s. But in essence, it says the standards use the least restrictive conditions of release that reasonable will assure the defendant’s appearance in court and protect public safety. Now, is that a constitutional right to the least restrictive pretrial arrangements? Or it’s obviously not, because we have hundreds of jurisdictions throughout the country being in violation in of the constitution. Where does the constitutionality of pretrial stand for pretrial release?
Cliff Keenan: Well, the constitutionality, again, I mean at the federal level, that what you just read is basically written into the federal law as well as the DC law. Many jurisdictions, if not most, also have the same language within the statute, which give to the judicial officer who has the responsibility for making that release or detention decision. There should be presumption of starting point that release because of the presumption of innocence should be what is triggered first. Once again though, in many jurisdictions, which do rely upon schedules, if the charge is burglary, the bond schedule which has been put in place by that court system could be $5,000 –
Len Sipes: Right,
Cliff Keenan: And the judges don’t look at the individual, they don’t look at the individual’s ties to the community, they don’t look at the individual’s potential risk based upon substance abuse, mental health issues, prior criminal record, doesn’t look at the employment history of the individual. They see the 5,000 dollar amount as being tied to that charge and that’s what they go with.
Len Sipes: So, Spike, you think that this is simply the way that we’ve done business throughout the Unites States for the last couple century and we’re so inculcated with that way of doing business that we can’t see a pretrial release model?
Spike Bradford: I think that’s a lot of it. I mean a lot of the questions that I get when I start talking about moving away from a money-based release decision are just, “Well, if we don’t charge them money, what do we do?” And the answer to that really is a number of things. We sort of we measure their risk along those two measures. Are they going to come back to court and are they likely to be rearrested pretrial? And then we have a graduated system where really low-risk people can just get out on a promise to return, maybe they get court date reminder via text or e-mail or something like that. Medium risk folks might have supervision or monitoring. They have to someone like Cliff in Cliff’s office. They might have GPS monitoring and ankle bracelet. Really, truly, people who measure to be dangerous, and particularly for violent crime, we support preventive detention. And a lot of states don’t really actually have that statute where you can detain someone without bail. So what they typically do in lieu of that is they just throw out a huge number and hope that that person can’t meet it.
Len Sipes: In essence what we’re saying is, “Let’s judge that individual who’s been arrested based upon his or her dangerousness, let’s not judge that person based upon their ability to put up 10% of the bail amount.” Is that what we’re saying?
Spike Bradford: Absolutely. And –
Len Sipes: Well, that seems to be awfully commonsensical.
Spike Bradford: Well, you would think so, but there really is a tie to money. I think people just really, really are tied to using money, and we want to move that towards the understanding of risk.
Len Sipes: We’re more than halfway through the program talking about pretrial in America. We’re talking to Cliff Keenan, Director of Pretrial Services for the District of Columbia, www.psa.gov, www.psa.gov . We’re also talking to Spike Bradford; he is the Director of Communications for the Pretrial Justice Institute, www.pretrial.org, www.pretrial.org. Gentlemen, in most of the conversations I’ve had with individual citizens throughout my 25 years representing correctional agencies it has been, “Why in the name of God is this person back on the street? He was arrested. I saw him assault Mr. Smith five hours ago and he’s back in the community. Why in the name good God is he back in the community?” And then they pick up the phone and then they call me and then we have to get into a discussion as to what pretrial is and what pretrial is supposed to be. So what do we say to people? I mean the guy’s back in the community five hours later. We saw him assault Mr. Smith down the street, but he’s been released on pretrial. Cliff, how do we justify that to the average person?
Cliff Keenan: Well, I’m going to ask Spike in a moment to address it, because I know that PJI has actually done some market surveys asking regular people their impressions about pretrial release and the use of bail and risk assessments and that sort of thing. But I know here in DC we have a number of community courts. So we have the community court judges, we have the prosecutor, the defense, and pretrial, and other actors in the criminal justice system go out to community meetings. And that question is often first on the mind of the citizen –
Len Sipes: Yes.
Cliff Keenan: Saying, “This person continues to come back time after time.”
Len Sipes: Right.
Cliff Keenan: The most important thing is making sure that citizens understand and appreciate the American criminal justice system, starting with that presumption of innocence. And the judges and the defense attorney and the prosecutors and we at pretrial remind them, “If you or one of your family members were arrested and charged with an offense, wouldn’t you want that same presumption of innocence? Wouldn’t you want the ability to be able to be free pending the case’s disposition in court in order to be able to help prepare your defense, in order to continue working, to continue caring for your family, without having to worry about putting up thousands of dollars for a cash bond or a surety bond that you may not be able to meet?” And when you put it in that perspective, they say, “Well, I could see it in that situation, but, again, this guy who continues to litter my property –”
Len Sipes: Right.
Cliff Keenan: “Or deposit trash.” They don’t have the same tolerance level for that. So I think in a philosophical way most people would agree. But when they’re talking about the recurring nuisance or the frequent flyers we call them here, that’s a separate issue, and I’m not sure that that’s the vast majority of people who’re being held without bond in the jails around the country.
Len Sipes: Cliff, you want to take a shot at what seems to be on every citizen’s mind, the idea of people who just get out time after time after time and come back to the community?
Spike Bradford: Well, sure. I mean Cliff had mentioned the polling that Pretrial Justice Institute did almost two years ago, and we’re getting ready to do that polling again in this next year. So we talk to just normal people and ask them questions about pretrial and risk and commercial bail bonding and that kind of thing. And what I think was most surprising from those findings were that, yeah, people want dangerous people to stay in jail and people understand we can’t hold everybody in jail. But when you say to them, “What do you think about using a risk assessment to measure a defendant’s risk and then base their release on that measure?” They say, “Isn’t that what you’re doing? How are we doing it now? Why aren’t we measuring risk?” They’re really surprised.
And, again, I think there’s a tendency to associate money with risk, but we know that that doesn’t correlate. So it’s not a really hard sell, once you do the sort of ground level education to people, say, “This is what we’re doing now. This is what it looks like with risk.” And you get a lot better outcomes and you don’t have our jails full of primarily poor people, low-risk poor defendants who are just there because they can’t afford to get out.
Len Sipes: Our bottom line is to individually assess every person that comes into the criminal justice system and to individually assess that person on a variety of factors, but certainly one of them being the danger to community. If the person presents a clear and present danger to the community there’s no problem in terms of detaining him until trial, but that does not apply to the vast majority of people that come into the criminal justice system. Very few people fall into that clear and present danger category. Am I right or wrong?
Cliff Keenan: You’re correct. And, again, when we did a very informal analysis last year to try to address this very question, at the time there were 2,300 persons who were detained at the jail and its various facilities, including its halfway houses. Out of that 2,300 we estimated about 300 were true pretrial defendants who had a single charge pending against them. And for the most part those were individuals charged with murder, assault with intent to kill –
Len Sipes: Right.
Cliff Keenan: Serious, serious violent offenses.
Len Sipes: Right.
Cliff Keenan: The rest of the individuals so 2,000 of them were charged with already having been parole violators, they were being held for probation violations, they were multiple offenders, there were things other or they were sentenced, there were other factors holding them. And when you compare that number, so slightly more than 10%, with what PJI statistics show that over 60%, if not more, of jail arrestees around the country are pretrial defendants, that’s astounding, it’s astounding.
Len Sipes: Yes. It is. All right, so the bottom line is if done right it works the vast majority of the times. It’s never going to be perfect. We understand that. We in the criminal justice system understand that it will never be perfect better than anybody else. But the overwhelming majority of the people who are on pretrial throughout the United States do show up for their court appointments. And that’s the whole idea, right, Spike?
Spike Bradford: Absolutely, absolutely. I mean I think we instantly sort of get an image of an arrestee that’s the worst of the worst, but honestly you or I could be arrested today and the chances are overwhelmingly that we’re going to make our court appointments. We don’t want any more disruption in our lives than possible. One thing I wanted to say about risk assessments, pretrial risk assessments is that what’s exciting right now is there’s a whole bunch of new science about how to do them and what’s important. And the way that they’ve been done and created previously has been consensus based.
So a bunch of players from a jurisdiction all get around a table, judges, prosecutors, everybody in the system, and they say, “Well, what do you think is important? What are important factors for returning to court or for community safety?” And these people have wealth of experience. That’s fine. But when you sit down and you actually take data from previous cases and you run that and say, “Well, who came back? Who didn’t? Who got rearrested?” Those set of factors from the consensus model towards the evidence-based model are quite different. For example, how long have you been in the community? You would think, well, a stable community person, that makes you more likely to comply.
Len Sipes: Right.
Spike Bradford: Scientifically, that’s very low on the list. How many kids do you have? Nope, doesn’t really show up statistically –
Len Sipes: What does show up?
Spike Bradford: On the list of factors. Sort of there’s a short list of static factors that are the most relevant, and they are. What’s your current charge? Have you been arrested for a violent felony? Have you been convicted of a misdemeanor? How many failure to appear warrants have you had? And how many convictions have you had? And there’s a few more that I can’t recall right off my head. But what’s interesting is that they’re all static factors that most jurisdictions keep data. And you can really just punch it in a computer and get a score. Now that score should be used to inform a decision by a person about what happens to that individual.
Len Sipes: What percentage of defendants, what percentage of jurisdictions are individually assessing defendants as they walk in through the door, do you have a guess?
Spike Bradford: If I had to guess, I mean it is a very small percentage, I would say 10%. There’re over 3,000 counties in the United States, and we did a survey a few years ago that showed there were 300 pretrial services programs. Now that’s different from using risk, they had a legitimate program. And it’s not just the small percentage that are using risk, there’s even smaller percentage that have a validated risk assessment tool which has gone through a process to really show that it’s reliable and replicateable.
Len Sipes: Cliff, you want to come into the conversation?
Cliff Keenan: Well, one important thing that I think we need to keep in mind when we’re talking about a validated risk assessment or any risk assessment instrument is the fact that this is a predictive tool, it is not something that will guarantee a person will not fail while on pretrial release. It’s a predictive tool, and many judges, many prosecutors, even though they understand the science associated with having an evidence-based statistically validated risk assessment, still ask the question, “Well, can you assure me, can you promise me this person is not going to screw up if released?” And then answer is no.
Len Sipes: Well, that’s impossible.
Cliff Keenan: Exactly.
Len Sipes: It is utterly and completely impossible to make a promise like that.
Cliff Keenan: But there are expectations, and for some jurisdictions, who have relied upon the way of doing business, they’ve always done it, they’re willing to basically go with the way they’ve always done it, because nobody can make a promise or an assurance that would necessarily satisfy them.
Len Sipes: Well, when I take a look at your report, which is up on your website, when I take a look at people who remain arrest free doing pretrial release, and it’s violent crimes in 98%, that’s pretty close too. I guarantee that 98% of the violent remain arrest free doing the period of pretrial release. And that the overwhelming majority close to 87, close to 90%, 87% make all scheduled court appearances. So once again, gentlemen, I ask the eternal question. If we’re doing this in the District of Columbia and we’re doing it well, again, we’re not promising 100% accuracy 100% of the time, that’s impossible to deliver, but if we’re doing it this well and we’re not relying upon monetary bail, why isn’t everybody else throughout the country embracing what it is that we’re doing? There’s got to be a reason.
Spike Bradford: I think what we’ve got already.
Len Sipes: Tradition.
Spike Bradford: Tradition, sort of cultural norms. And I think it’s institutionalized. And pretrial reform I think is moving faster than a lot of sort of other institutional reforms, healthcare, education, things like that, where we know there are a group of people with science behind them that have a good direction. It’s just a matter of education, getting out there. Exciting thing that’s happening is Bureau of Justice Assistance and PJI is the initiative coordinator for this project called Smart Pretrial Demonstration Initiative and applications are being accepted now for this pilot program. So they’ll be going to three jurisdictions in the country to sort of set up a model system to get a risk assessment tool going and to use supervision and monitoring as well as some other conditions that are in that program. So we’re pushing out the good model and it’s just going to reach critical mass soon I hope, especially with the increased awareness of over-incarceration and all the money that gets wasted. And we spend over nine billion dollars every year detaining pretrial defendants when a vast majority of those could be supervised in the community.
Len Sipes: We’ve got a minute and a half left. I hear this all the time from everybody within the criminal justice system. It costs millions; tens of millions of dollars to run jails, only put the people who pose a clear and present danger to the community in the jails, everybody else put out under pretrial supervision. That will save cities, counties, states literally billions of dollars over time. Am I right or wrong?
Cliff Keenan: You are absolutely correct. And the unfortunate thing is it is taking 50 years since the first bail reform conference, but I do applaud Attorney General Eric Holder who three years ago now convened the second bail reform conference, and a lot of the pretrial reform that you’re seeing taking place recently is certainly due to him and the work of the Pretrial Justice Institute in making sure that this stays on everybody’s radar.
Len Sipes: Cliff, you’ve got 30 seconds, you got the final word. What’s your sense of all this, conclusions? I’m sorry, Spike.
Spike Bradford: Okay. Oh, wow! So, yeah, I mean I would agree with Cliff that the tide is moving in the right direction, it’s been 50 years. We have a group called the Pretrial Justice Working Group along with BJA. It’s over 150 organizations that are all working towards this same goal of moving from money to risk safe effective pretrial systems.
Len Sipes: All right, gentlemen, I can’t tell you how important this topic is, pretrial in America. Ladies and gentlemen, we’ve had Cliff Keenan the Director for Pretrial Services for the District of Columbia, www.psa.gov, and Spike Bradford, Director of Communications for the Pretrial Justice Institute, www.pretrial.org. Ladies and gentlemen, this is DC Public Safety. We appreciate your comments, we even appreciate your criticisms, and we want everybody to have themselves a very pleasant day.
[Audio Ends]
