Pretrial in America

DC Public Safety Radio

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See the radio program at http://media.csosa.gov/podcast/audio/2015/12/pretrial-in-america/

Leonard: -From the Nation’s capital this is DC Public Safety. I’m your host Leonard Sipes. Pretrial in America ladies and gentlemen is our topic for today. Cliff Keenan the director of the pretrial services agency for the District of Columbia is a back at our microphones www.psa.gov. Cliff Keenan welcome back to DC Public Safety.

Cliff: Leonard, thank you for having me back.

Leonard: One of the reasons that we invited Cliff here today is to talk about pretrial in America. Though I think American United States there is an on-going discussion about reform in the criminal justice system. For those of you who follow the show last week we did a show with Pew about fundamental change in the criminal justice system. pretrial is a component of this on-going discussion in terms of fundamental change in criminal justice policy throughout the country.
We have a discussion at the pretrial level because a lot of people don’t quite understand why a person who was out there on a Tuesday night, and let’s say he is arrested for aggravated assault. He is released from jail either on personal recognizance or bail within a three-hour time period. Citizens are sitting back and going, “Wait a minute, I thought he was arrested. I thought he went to jail. Why is he back out on the street?” Cliff Keenan why is he back out in the street?

Cliff: Well, Leonard you bring up several different issues there, but let’s talk first about why is the person back out on the street. It is a fundamental principle of the American Criminal Justice System that everybody who is arrested is presumed innocent. That person’s liberty interest should not be denied simply because of the arrest.

Leonard: He wasn’t presumed innocent he was seen by a bunch of people beating up his brother in law with a beer bottle. It’s aggravated assault. He’s not presumed innocent. He was witnessed by lots of people possibly witnessed by the cops. Why is he presumed innocent?

Cliff: Well, presumed innocent is the term we use in the eyes of the law. I’m not saying the person didn’t do it, but I’m saying is that even though the officers may have had more than enough probable cause which is the basis for the arrests to be made, that person is still presumed innocent because until a judge or a jury makes a finding of guilt that person is entitled to all of the protections that go along with the presumption of innocence. That begins with setting appropriate conditions of release again. Appropriate conditions of release pending the person’s future court appearances. That determinations needs to be made not by the police officer, not by the prosecutor but by the judge who is going to be making an independent determination as to whether or not this person should be released, and if so under what conditions should that person be released.

Leonard: We really do adhere to the United States Constitution which provides a presumption of innocence until proven guilt. As far as the criminal justice system is concerned legally that person has not been convicted of anything he is being charged with something.

Cliff: Absolutely. Let me go back to the first thing that you referenced which was there seems to be changes taking place today in America. One of the changes is the whole notion of pretrial processes. That seems to be a current phenomenon in the eyes of many around the country, but actually this is something that goes back more than 50 years ago. In fact, Attorney General Bobby Kennedy back in May of 1964. I’m always astounded by this because this was within six months of his brother’s assassination. He convened here in Washington DC the first national conference on bail in criminal justice.
Let me read to you just two quotes. The first was on the opening ceremony of that conference here in DC. What Attorney General Bobby Kennedy 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 United States who are accused of a 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 these people, for those who cannot protect themselves, for those who are unfortunate we hear over the period of the next three days have a special responsibility.” He recognized back then how important the whole bail process was.
On the last day of the conference on May 29th of 1964. Attorney General Kennedy said the following, “What has been made clear today in the last two days is that our present attitudes toward 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 guilty 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 that defendant have?”

Leonard: The interesting thing and I do want to get further along in the program and talk about the difference in the way that we conduct pretrial services here in the District of Columbia because your stats are astoundingly good. You have a whole organization devoted to the pretrial process. Before getting there and talking about what we do in DC and what we do throughout the rest of the country, it is a fact that the vast majority of people however since the attorney general made that announcement are released upon bail. Today, in 2015 we still have that status today. A person generally speaking is released upon their own personal recognizance, if I could ever say that word correctly or they’re released on bail. Today we still a system where how much you can afford to put up is dependent upon whether or not you were released.

Cliff: Well, let me tell you why it works that way today around the country, here in Washington DC and not in the federal system. That 1964 conference on bail convened by Attorney General Kennedy resulted in the passage of what was called the Bail Reform Act of 1966. Within two years of that conference congress was able to pass legislation that started to move the federal system as well as the local court system here in Washington DC because we are the Nation’s capital. At the time we were under congressional authority. Those laws began the change back in 1966. My agency the Pretrial Services Agency had a precursor agency called the DC Bail Agency which was created by an act of Congress in 1967.
We’ve been around for many, many years and over the years our system has changed and has moved dramatically away from the use of money bail or bond, commercial surety bond as a condition of release. Whereas, other states and other jurisdictions around the country have not kept up. That I believe is the marked difference between our jurisdiction and other jurisdictions.

Leonard: Am I correct in the stating that the vast majority of agencies throughout the United States right now still rely upon bail and still rely upon personal release? If you can prove that you are established in the community, that you own a home, that you have a family, that your flight risk is minimal, that’s the … That’s the basis for release today. Correct?
Cliff: In many jurisdictions but not in all jurisdictions. In many jurisdictions it’s still the case that if a person is arrested for a particular crime, say commercial burglary. There’s a bond schedule in that jurisdiction. Commercial burglary in this particular jurisdiction may carry a bond of $10,000 which means if the officer arrested the person for commercial burglary, that person has put up $10,000 otherwise that person stays in jail …

Leonard: Or they go to a bail bondsman who puts up approximately 10% of that.

Cliff: Correct.

Leonard: Or he puts up 10% and the bail agency puts up the other 90%.

Cliff: Well, no. The other 90% is not actually put up at all. That’s one of the problems with commercial surety, with bondsman. Many jurisdictions in fact, don’t require the bondsman to actually put up anything. It’s basically a promise or a guarantee that the person will come back and it’s up to the court if the person fails to show to then take action against the commercial …

Leonard: Whether or not it’s enforced. That’s a pretty sweet deal.

Cliff: Yes. Some jurisdictions have found themselves to be on the short end of receiving some of the receipts that they should have from the commercial bond industry because they are again are just not following up on those acts.

Leonard: Okay, but personal release and release by bail is not the least bit unusual in the United States today.

Cliff: Correct, but the reality is if you look at jail populations around the country estimates are between 60% and 70% of the jail populations are pretrial defendants who are unable to make the amount of bail which has been set as condition of release.

Leonard: No, that gets us back to criminal justice reform because what folks or on the conservative side are basically saying that you folks in the criminal justice system all of us need to be far more efficient, and it means to cost taxpayers less money. You’re spending way too much money and you’re not providing the right efficiencies. If 70% of that jail population is there, they are there on a pretrial basis. If there are lower level offenders, we all have heard the stories of people possession of marijuana, lower level crimes in jail for months until the trial comes along. Because they can’t afford to put up a small bail amount say $1,000 or $500. They languish in that jail and yet taxpayers are picking up the tab for keeping them every single day for the months that it takes. That seems to be wildly inefficient.

Cliff: Leonard you’re absolutely right. That’s why many jurisdictions around the country are starting to examine their pretrial justice systems. Because they realize not only is it inefficient, not only is it costly, but it’s also fundamentally unfair. Typically the persons who are not able to post their bond are people who are less affluent than the middle class. Typically they’re persons of color and this desperate impact that these setting of bail are having on some of those populations it’s just fundamentally unfair. That’s why I think many, many jurisdictions are starting to take renewed interest in trying to make some appropriate changes.
Let me also say this here in Washington DC our jail on any given day in this has been consistent for the last several years is operating at about 50% capacity. We don’t have people sitting in jail because of a money bond that they cannot make. Our system is one which is predicated upon people who are dangerous. A finding haven’t been made by a judge that a person is dangerous or a flight risk stays in jail because of that potential risk.

Leonard: I do want to examine that a little bit more. It’s just not DC but throughout the country. Those people where that judge feels that individual who has been charged with a crime is a dangerous individual is a clear and present danger to society, does pose a flight risk based upon what’s happened in the past. They still can keep that person regardless of the system.

Cliff: That’s absolutely correct. In fact, many jurisdictions do not allow the judicial officer to consider safety as a factor in setting conditions. New York for instance, in New York the only conditions that a judge can impose are in order to assure return to court. If a person is an extremely dangerous individual, what the judge will do is set a very high money bond $500,000 or $1 million in the hopes that the person doesn’t have the resources to in fact make that bond, and subsequently get out. Once again there you’re playing with potential risks to community safety because if a person has means and can actually post the bond amount, then there’s no guarantee of safety to the community or return to court guarantees.

Leonard: All right. Well, that’s surprising because I thought in every jurisdiction you could based upon dangerousness. In many jurisdictions throughout the country it is solely based upon the probability of that person returning for trial.

Cliff: Yes that’s absolutely correct.

Leonard: Okay. The bottom line assessment on the part of the Attorney General in 1966 Robert Kennedy, his assessment was those who have money get out and those who don’t have money stay in regardless as to your criminal justice status or guilt or innocence or anything else. It’s still principally predicated on whether or not you have the money to get out.
Cliff: Correct. That’s the way it continues to be to this day in the United States which is why I applaud the efforts that many jurisdictions in fact are undertaking. For instance, New Jersey. They had to pass a constitutional amendment to their state constitution in order to rectify their pretrial justice system. In New Jersey everybody was considered to be bailable. You need a robust preventive detention statute. Some mechanism which is going to protect the due process rights of the accused but also balancing that against the interest of society, the community, and that decision needing to be made by the judge. New Jersey, Pennsylvania, other states around the county. In fact, are looking at making constitutional changes to their state constitution in order to have a stronger statutory foundation in which to operate.

Leonard: We’re about halfway through the program I want to re-introduce our guests Cliff Keenan the director of the pretrial services agency for the District of Columbia. Www.psa.gov. Cliff is considered one of the top experts in the United States in pretrial services. There are a lot of organizations looking to reform a pretrial. Cliff throughout the United States. There’s a National Association of pretrial services or …

Cliff: That’s correct. There’s also an organization here in Washington DC called The pretrial Justice Institute. Anybody who is interested in either looking at historical material or the current state of affairs nationally could go to their website which is just www.pretrial.org. There is a wealth of information. One of the most I think compelling arguments recently is there is a fair amount of research which has been generated both through PJI as well as through the Arnold Foundation which finds that some of the negative collateral consequences associated with even brief periods of incarceration. As little as one two or three days can have on a person.
Think about it. If you’ve been arrested even though you’re presumed innocent but a judge has put a $1,000 bond on you and you can’t make it because you don’t have a $1,000 you know bondsman is going to underwrite a $1,000 bond because it’s not in their interest to do so. You may sit in jail for one two three days perhaps a week if you’re self-employed. You’re not generating any income, if you’re working in the service industry and you’re not showing up for work, you’re not going to be generating any income. If you’re a single parent responsible for watching your kids, housing issues, there are so many collateral consequences associated with even brief periods of detention that I don’t think America is really taking its responsibility to be fair, and to make sure that people who have been assessed as being a risk to the community, or a risk of returning to court are the ones who stay in jail.

Leonard: Well, let’s talk about those return rates. The District of Columbia does it differently from … I’m still going to say most of the organizations in the country. You’re a federal agency in the same way that court services and a federal supervision agency my agency is a federal agency. We have federal funding to do it properly. You have pretrial services agents who do take all individuals because in the District of Columbia the presumption is release. Unless there is a reason to hold the person beyond that, the presumption is release. The presumption is that if you’re charged with a crime, in the District of Columbia beyond dangerousness, or beyond flight risk, that means the great majority of people charged with crimes are going to be under your supervision. You have special units, you have GPS, you do immense about drug testing. You have the money and the structure and the wherewithal to supervise these individuals properly until they go to trial. Correct?

Cliff: That is correct.

Leonard: Most organizations don’t have the resources that you have is that also correct?

Cliff: That is correct, but I would defy any organization or agency or jurisdiction to point a finger at us here in Washington in the pretrial service agency saying we can’t do what you do because you’re a federal agency because you have so many resources. We actually looked at the basic services that a pretrial agency such as ours would actually cause the jurisdiction. There’s looking at the recommendation process in terms of making a recommendation to the judge at the initial hearing in order to help the judge decide whether or not the person is of re-appearing or not, or re-offending or not. We found that that along with the basic supervision to include GPS and some of the other supervision strategies, costs approximately $18 per day per defendant.
Now the current rate for housing a prisoner at the DC jail is about $205 per day. Once again you identified earlier we’re paying a lot of money in keeping people locked up. People who probably don’t need to be locked up to assure community safety or return to court. We’re spending that money without any regard to the negative collateral consequences that the person in his or her family may be subjected to. The flip side is for such a small fraction of that we could be doing what we’re doing here in DC. That’s the message that we’re hoping to get out nationally that there are ways of doing things in a smarter, more effective, more efficient way which are not going to be unfair or prejudicial or biased against one portion of our population as opposed to another.

Leonard: The statistics prove your point of view because the overwhelming majority of the individuals or in your case load do come to trial. The overwhelming majority of the individuals or in your case load are not involved in new criminal activity before that trial date. I’ve taken a look at your stats in the past. I have compared those statistics to National Statistics and your rate of return, and your rate of people who commit crimes before trial. Your data shows you to be phenominally successful.

Cliff: Well, again I agree with that …

Leonard: Is that a stretch or …

Cliff: No, no, no. I said I agree with that. The question is how does one define successful?

Leonard: Well, let’s talk about how we define successful.

Cliff: Let me give you some statistics. We have been tracking how many of our arrested population get released before a case disposition. For the last five years the average has been about 90% of the people who have been arrested by various law enforcement agencies here in DC end up being released at some point after their arrest prior to case disposition which is huge.

Leonard: That is huge 90% are released.

Cliff: Of those persons who are released and this is not just preach trials supervision but those who are also released on personal recognizance. We think is a good percentage of the population. Of all of those who have been released, about 89% on average for the last several years come back for all of their court appearances.

Leonard: All of them?

Cliff: Correct.

Leonard: 89%?

Cliff: Right.

Leonard: Multiple, multiple, multiple times return for trial?

Cliff: Correct. Now once again you have to look at definitions because we consider the first failure to appear even if it subsequently excused by the judge, is still a failure to appear. We’re looking to scrub that number to see how many people end up actually being responsible for willfully failing to appear. I think that number will be even smaller than it is that we’re currently looking at. The other statistic that we look at is how many persons remain arrest free while they’re on pretrial release. That number has been averaging about 88%. For the last several years roughly 88% of our released population do not get re-arrested for any offense. The reality is those persons who are re-arrested it’s typically for minor things. Somebody may have a possession of cocaine case pending, they pick up another possession of cocaine case. The persons who are re-arrested we find that less than 1% are rearrested for a violent crime. Which we think reflects the fact that …

Leonard: Less than 1% are re-arrested for a violent crime while under the supervision a pretrial services agency?

Cliff: Correct. Once again I think you know no pretrial function can guarantee success. We’re dealing with human beings and people are going to do what people will do.

Leonard: There are no guarantees in community supervision.

Cliff: Correct. We do the very best we can and I think that our statistics reflect as you said very successful results. I think that the stakeholders here in the DC Criminal Justice System including the judges in the courts as well as our law-enforcement partners as well as the prosecutors, the defense and even the community recognize our bail system, our pretrial system of doing justice as being a model that others around the country can learn from.

Leonard: That is true that’s no stretch to the imagination they consider people in re-trial look to your system the system that you run here in the District of Columbia as being a model agency. It’s not the public affairs person just blowing smoke. It really is … You are considered to be one of the best in the United States if not the best in the United States. People constantly refer back to what it is that you’re doing as something that other agencies should emulate throughout the country. Not necessarily on constitutional or philosophical grounds although how can you ignore that? How can you ignore the Constitution? How can you ignore the law? Based upon principally, your stats.

Cliff: Correct. Actually Leonard if I could urge your viewers who may not be familiar with the American bail system, if they get the opportunity, an individual John Oliver has a program on HBO which we call The Week in Review. About two months ago he did an entire segment on Bail in America. While it’s humorous It’s also sad because many, many people do not realize the implications that our reliance upon commercial bail, surety bail, if you will has on the average individual who ends up getting arrested. I think even though it’s humorous I think he puts a very appropriate perspective on how illogical as Attorney General Kennedy said, “Our system is if it comes to rely upon money.”
There are two countries that rely upon commercial surety bail to the same extent around the world. Two out of the entire world. The United States in the Philippines. No other countries utilize commercial bail the way we do here. It’s something which I think continues to need to be modified in order to make for a more fair system.

Leonard: But we touched upon this at the beginning of the program. Why this sense of allegiance to monetary bail? There is something philosophically … Something of this philosophically driven I think that where people are saying to themselves, “I know that he’s innocent before being proven guilty.” I understand that but in all probability he is guilty, and at least with the bail system or sometime in jail at least there’s some punishment for the crime that he’s committed. There’s got to be a reason as to why decade after decade, after decade we’re still principally reliant upon monetary bail, or personal release.

Cliff: Well you hit upon an interesting point because there is no way that a person or an individual who gets caught up in the criminal justice system in America should be punished prior to finding of guilt. In fact, in a Supreme Court case back in 1951 the court’s finding was that one of the purposes of bail is to ensure that again presumed innocent persons in fact, are not punished prior to that finding of guilt. Yeah that’s the reality. I think the use of commercial bail and bond schedules is a very easy way for systems a) Some of them rely upon that money to help support court costs. They use it as a revenue generator. Some jurisdictions consider to be An easy way to deal with many, many cases because the judge doesn’t need to make an individualized decision about this person’s flight risk or potential harm to the community.
Again, commercial burglary equals $10,000. Very quick, very simple. To be frank I think many judges abdicate their responsibility to uphold the constitution of the United States as well as their own state by imposing money bail because they can say should something happen if the person were to be released and did something wrong, they could say, “Hey I did what the statute or what our court rules require which was to impose this bond.” Again that shouldn’t be the function of the judge in setting these conditions of release. We shouldn’t do it the easy way, the most expedient way, the quickest way, we should do it in a way that preserves true American justice.

Leonard: It preserves the United States Constitution and at the same time it’s pragmatic because it costs taxpayers a lot less to keep a person on pretrial than in jail. That’s the efficiencies that many people throughout the country are calling for in a criminal justice system. You’ve been able to prove those efficiencies. The case seems to be made.

Cliff: I agree. I think that we are in a very good place here in Washington DC both because of our statutory framework as well as because of the resources that we the pretrial service agency are able to bring to the table. Most importantly I think it’s also because all of the actors especially the judges … they understand what their responsibility is in terms of administering pretrial justice and the way it’s supposed to be administered.

Leonard: Final minute of the program before we have to close Cliff. Is there something we’ve left out of this discussion? Again, so many people come to this program and there are newbies of some congress person, or mayor, or state senator as their aides to discover what the issues are in pretrial. That’s one of the reasons why we do these programs. Is there anything we left out of this discussion?

Cliff: No. I would just urge other jurisdictions to look at all of the reforms that are taking place either within their own jurisdiction or nearby jurisdictions. This is something which … and I chalk a lot of it up to former Attorney General Eric Holder who convened the second Bail Reform Conference just four years ago. I think as a result of that and the work of many of our leaders in the pretrial field, we’re seeing progress around the country and we would like to see it continue.

Leonard: Are we going to be moving towards more of a pretrial services agency in the District of Columbia style of bail and less of a reliance upon monetary bail?

Cliff: In other jurisdictions absolutely. New Jersey is kicking off their pretrial Service Agency program in 2017. We’ve been asked to speak to Pennsylvania, New Mexico, California, New York, any number of jurisdictions are starting to do exactly what we’ve been doing for the last 50 years.

Leonard: At our microphones today Cliff Keenan, the Director of the Pretrial Services Agency for the District of Columbia. Www.psa.gov. 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.

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