Victim Rights in the Pretrial Process

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Radio Program available at http://media.csosa.gov/podcast/audio/2011/05/victim-rights-in-the-pretrial-process/

We welcome your comments or suggestions at leonard.sipes@csosa.gov or at Twitter at http://twitter.com/lensipes.

[Audio Begins]

Len Sipes:  From the national’s Capital this is DC Public Safety. I’m your host Leonard Sipes. Back on our microphones – Will Marling, the Executive Director of the National Organization for Victim Assistance, www.trynova.org. NOVA has a long history, decades-long history, of protecting victims’ rights and the topic of the show today is going to be victim’s issues and pretrial release. What happens when a person is arrested and then released back out to the community and what it means to victims and victim protection? To discuss the pretrial end of it we have Tim Murray. He is the Executive Director of the Pretrial Justice Institute – www.pretrial.org. Before we begin the show a couple of announcements. I’ve been asked to promote a variety of organizations.  One is the National Reentry Resource Center. It’s a project of the Bureau of Justice Assistance, Office of Justice Programs, US Department of Justice. It is a comprehensive website in terms of reentry issues. You can reach them via the website – www.nationalreentryresourcecenter.org. The American Probation and Parole Association, they’ve asked me to promote the fact that there is an entire week in July promoting the work of probation agents, not only in the United States, but throughout the world. You can reach them via their website at www.appa-net.org and also it’s interesting. I spoke to our friends down at the Louisiana Department of Corrections. They’re the only other entity in the country doing radio shows on reentry. The Louisiana Department of Corrections Division of Parole and Probation and their web address is simply way too long for me to give out on the radio. It’ll be in the show notes and so we get back to Will Marling and Tim Murray. Welcome to DC Public Safety.

Will Marling:  Hey, Len. Good to be with you.

Tim Murray:  Thanks Len. Appreciate it.

Len Sipes:  Well, gentlemen, this is an interesting topic. It really is and I can’t think of anything dicier or more controversial than this issue because, Will Marling, the victims’ issues are something that the entire criminal justice system should be embracing. I’m not quite sure if we embrace them to the fullest possible extent, but we are here not only for the protection of citizens, we’re here, needless to say, for the protection of victims and you and I have had a variety of discussions where the criminal justice system just is not as good as it should be in terms of protecting victims’ rights. And now we have Pretrial Justice Institute, Tim Murray, to discuss this whole issue of pretrial. The problem is that states and local jurisdictions throughout the country are complaining bitterly.  Their jails are filled to capacity and what they’re saying is that either builds another jail – either invests hundreds of millions of dollars in terms of construction and operating costs – or we have to make decisions as to who we let go before trial. That the more dangerous individual needs to stay – nobody would doubt that, but the lesser offender – that means that he is going to be put out on some sort of bail or some sort of pretrial release. In the District of Columbia we have an entire organization, The Pretrial Release Agency, The Pretrial Services Agency, who’s there to supervise people on pretrial, but citizens object to that, that somebody gets arrested and three hours later the person is back on their block. So there’s a lot of controversy involved in this. Will, did I frame all this correctly?

Will Marling:  Yeah. I think you covered the bases pretty well, but the question and the whole operation for us is where do victims stand? How are they involved? Are their needs represented specifically, first and foremost, for safety and security? But then, of course, the approach to justice and all of these things, mixed together sometimes not clearly and we’re just constantly trying to affirm that victims always…the Pew Institute’s research regarding safety and security, the one thing that comes out in that research is…that’s the number one thing in all of these discussions communities agree on and that is we want safe and secure communities. Of course, the disagreement or the discussion, if I could soften it even there is, well, what does that look like and how does that work? And so when we’re looking at this pretrial justice issue and saying what are the realities because most people aren’t well educated on it? And I’m coming up to speed myself so that I can better serve victims.

Len Sipes:  Tim?

Tim Murray:  Yeah. I appreciate the opportunity to talk about this on your broadcast and I appreciate the opportunities that have developed with Will and with NOVA. When Will and I first started having conversations about these issues we both shared a remarkable number of concerns. I think criminal justice professionals have done a less than adequate job in recognizing and effectively dealing with victim issues, needs and concerns and that’s despite the fact that many localities have passed very robust victims’ Bills of Rights and similar legislation. When you get to the bread and butter practitioner, the men or women that are working in our courts or our jails or with our probation or parole populations, they’re relatively unversed as to what services are available to victims; how victims access those services and they’re relatively unversed in how to deal with victims who confront them regarding their dissatisfaction or misunderstanding of how the justice system works. The one thing that Will and I come to constant and consistence agreement regarding is the public’s demand and expectation for safety and even though we both work at organizations that on the face of it might seem fields apart in terms of our individual interests, there is congruence when we start talking about public safety. I think that victims, as you’re described, Len, often don’t understand how the justice system works and I think the justice system often – these are my words – runs and hides from victims when victims raise concerns and I think Will and I have agreed to agree to do what we can with our organizations to remedy both of those situations.

Len Sipes:  Tim, the issue here, it strikes me, is making a proper assessment of the individual within our custody on a pretrial basis and to make sure that if the person poses a clear and present risk to society that that person is kept behind bars. If the person is not that clear and present risk or danger to society, alternative means need to be considered either through monetary bail or through what we do in the District of Columbia is actually have a Government-funded organization to supervise offenders in the community on a pretrial basis. So I think the heart and soul of this in terms of being fair to victims and fair to the larger issue of justice is our ability to figure out who’s dangerous and who’s an acceptable risk. Am I correct?

Tim Murray:  Yeah. I think you’re correct on most of that. I would probably pick apart a couple of assumptions you’re making, but let me first start by saying I think that all of us expect the justice system to make sense and in this particular part of the criminal process it often does not. In this part of the criminal case process if you have a pocketful of cash, regardless of how dangerous you are, you are likely to be released in almost every jurisdiction in this country except the District of Columbia and one or two others because in most localities in this country, cash is what’s used to determine who gets out of jail and, conversely, who stays in jail and cash on the same front does absolutely nothing to enhance or maintain community safety. Once I pay that money as someone’s has been arrested to a bail bondsman, I don’t get that money back if I behave and I don’t lose more money if I misbehave. That money has already changed hands. The jail door has opened and I’ve walked back into the community unfettered by supervision, accountability or monitoring. The conversations that I’d had with Will have focused on the need to change that paradigm. Cash is often used as a reason why the bail system is broken in this country because it discriminates against the poor and while that is absolutely true, what is not discussed often enough is that it also pays no service to community safety. It endangers victims. It endangers communities as a whole. Just within the last few months there have been tragic instances where people have paid money to a bondsman shortly after arrest – the kind of area you described, Len, at the beginning of your show – a case just in the last two weeks that the man was arrested in a domestic violence case.

We’re all familiar with the challenges associated with domestic violence and hopefully we would all agree that a rational response to domestic violence is not requiring someone to give someone else a couple of hundred bucks. In this case, in Washington State, there seemed to be a joint charge for domestic violence. He pays the $2,000 bond, goes homes, burns down his house with his five children in it as well as him killing himself and I wish that was an isolated instance. It is not. We know that people who get arrested are problematic. Some of them pose significant dangers. We believe and support the idea that danger can’t be addressed, identified in lesser degrees of danger can be transparently managed in the community rather than hide behind dollar amount and pretend we’re all safer because a dollar amount has been fixed on someone’s pretrial freedom or liberty.

Len Sipes:  I’m going to brag for a second. Our Pretrial Services Agency here in the District of Columbia, which is a federally-funded agency, has a much lower failure to return rate than most Pretrial Service Agencies throughout the country and that’s a pretty decent track record and they’ve been able to combine both public safety and getting the overwhelming majority of people in court to trial, but, Will, again, Tim mentioned it, this is a real dichotomy for victims. This is a real dichotomy for citizens. I agree with Tim that the average person doesn’t really understand the criminal justice system and if think that’s principally our fault within the criminal justice system for not being vocal enough, which is why we do these programs, but it is tough for that person to understand. I mean the person has committed a crime. As far as they’re concerned, the person is as guilty as sin because they watched him do it or they were the victims themselves and how that person could be released within hours of being arrested as far they’re concerned their safety is jeopardized by that release and how we overcome that, how we explain that, well, we’ve got limited finances. We can’t keep everybody behind bars for every crime that’s been committed. We have to pick and choose between the most dangerous and the people who pose an acceptable risk to public safety. That’s an almost impossible concept for victims of crime to understand.

Will Marling:  Well, sure. If you take each individual victim and look at the loss that they’ve experienced, the injustice that they’re endured, we naturally absorb a reaction from them, an anger from them that says, “I’d really like something to be done about the perpetrator.” We recognize that and we certainly honor and respect it. We also try to educate victims on these issues to say, “Now, what’s realistic in the world in which we live, in the justice system in which you are now engaged? What is truly realistic?” And victims were sensible people, most of them, before they were victimized and they’re sensible people after they’re victimized. So you can discuss these issues. I think what Tim and I have engaged on in respecting and reflecting on this issue, respecting one another, is that there are some clearly nonsensical things going on that to say that a person and the risk that he or she poses to society is based solely on a relatively subjective monetary standard…

People don’t realize that’s what’s transpiring. They figure that there’s got to be some sophisticated thought that went into determining that and that it has some level of protection and what we’re realizing is that is just not the case. So we want to look at the issue for the sake of victims because you go to the doctor and you want that doctor’s opinion on behalf of your medical condition, even though you might have perceptions. You might defer saying, “Okay, I understand that you’re focused on this.” So we want to be representing the needs of victims while also working sensibly to bring about meaningful change within the system and so that’s why Tim and I, we’re collaborating on this issue because we believe ultimately it serves society, it serves victims and it serves the process. We’re in a period in our lives, in our culture, in our society, where finances have to be considered. So now we’re driven to consider these things because the jails are overcrowded. We can’t build enough prisons and so on. So this is a good time actually to discuss this. What truly works, what’s truly meaningful in addressing the risk factors? What is sensible for serving victims?

Len Sipes:  I think your example yesterday, Will, when we were talking about this. Okay, so the guy is a major drug dealer. He’s involved in organized crime and what happens is he gets $10,000 bail. He gets a $25,000 bail. That’s a considerable amount of money, but for people involved with organized crime it may not be and that person posted the $25,000 bail and the person’s suddenly out. So there the decision is not necessary made on the dangerousness to society. It’s done purely because he has access to the money.

Will Marling:  Well, absolutely.

Tim Murray:  Len, if I can jump in here.

Len Sipes:  Yeah, Tim.

Tim Murray:  I think it’s important for everybody who is listening to remember that our nation’s court have always dealt with the issue of danger when they set pretrial release conditions, but our traditional way of dealing with danger is setting a dollar amount and keeping our fingers crossed that the bad guy doesn’t have the money and in many cases that turns out to be exactly the case, but decision-makers never know for sure. Maurice Clemens was a defendant in Tacoma, Washington, a year and a half ago or so. They sent a $190,000 bond on this guy with, I believe, child molesting, sexual molestation of an underage child – $190,000 bond. He pays it and shortly thereafter he walks into a diner and shoots and kills four deputies.

Now, as a result of that tragedy the state of Washington is looking at creating legislation that resembles the legislation in the District of Columbia and that’s something that Will and I have talked about. The court should have the power to detain someone pending trial and the Prosecutor makes a case, rebutted by Defense in an open evidentiary hearing and when the Prosecutor makes the case that this defendant is so dangerous that no condition of supervision or combination of conditions can reasonably assure appearance, then that individual, as is currently the case in DC and in the federal system, is helped. He has some safe bets that go along with that. Their trial has to be accelerated. You can’t just keep them locked up on an accusation for years at a time, but that is a fair transparent and rational and, I believe, an honest way of dealing with an issue that the courts have always had to deal with, but have done so in a hypocritical way – by pretending that a $100,000 bond is actually going to protect the community. It only protects the community if the defendant doesn’t have it and in some cases…the case that you discussed yesterday. Those cases raise the issue….in the case of a drug dealer who get s $25,000 bond, where did he get the money to pay the bond? And it’s not unheard of in this country that defendants make deals with commercial bondsman. They pay them over time. They literally get released. Go out and commit further crimes, creating more victims, in order to pay the bounty for their release. It’s just no way to administer justice and it’s really time to end it once and for all and I think the voice of the victim’s community is a powerful one and when people like Will start having these conversations out loud, officials take notice and listen and I think that’s an important conversation for officials to pay attention to.

Len Sipes:  We’re way more than halfway through the program. I want to re-introduce our guests. Will Marling, the Executive Director of the National Organization for Victim Assistance, www.trynova.org. Tim Murray, the Executive Director of the Pretrial Justice Institute, www.pretrial.org. Gentlemen, in the final minutes of the program, the final ten minutes, I want to cut to the chase now, okay? We’ve had a larger philosophical discussion. What I’m hearing is…what you’re saying, Tim, is that you want to see supervision upon release and you want to see that the person released from pretrial incarceration from our jails throughout the country, that release decision should be made solely upon the person’s level of dangerousness. So it’s supervision plus that conscious decision as to the degree of dangerousness. Do I have that correct?

Tim Murray:  Yeah. Let me try and give you very succinct answer. We had had the right to bail in most countries since 1789. That accompanies are presumption of innocence, but as you’ve described it, many people see the crime occurs. It’s a slam-dunk the crime occurred, as are that particular defendant. It’s not a shocking surprise to see the tremendously high conviction rate of those who are arrested. Cops arrest the right guy for the right reason most of the time. There are due process considerations, which we all support and defend. In making the constitutional right of determining who is released pending trial, when I am asked base that decision on the risk of that defendant not by the number of dollars he can get a hold of and if that defendant poses a risk that is greater that the community supports to manage it, then hold that defendant without the option for release and bring them to trial in a speedy manner.

Len Sipes:  Will Marling, the other issue is that we have these wonderful tools now and we’ve have thirty years of development trying to figure out who poses a clear and present risk to the public and who’s an acceptable risk in terms of release on a pretrial basis, but you’re not perfect.

Will Marling:  Sure.

Len Sipes:  And even under the best of circumstances the decisions that we within the criminal justice system make, some of them are going to blow up in our face and then the victims community is going to…well, not just the victims community, but society in general is going to rightly sit back and say, “Well, what’s up with this? I mean, don’t you guys know what you’re doing?” I mean, so somewhere along the line the victims community and society at large really has to give us a lot of leeway because we’re going to get it right 95% of the time, but that other 5% is going to kill us.

Will Marling:  Well, sure, and accountability works its way in there, hopefully, appropriately so because when things don’t go as they should go we naturally say, “Was there a gap? Did there need to be a change somewhere? Is there a policy change in view?” I think what really gets us is when the state is designed to fail, okay. When somebody gets out on bail and goes and injures children, for instance – like Tim was articulating in a recent story, a recent reality – we ask the question: Well, okay, where was the gap? Well, when you discover the gap is built in, the process is built in, that’s what creates the greatest outrage for us and victims, again, they’re sensible people and they say, “You mean actually it wasn’t based on risk assessment there? It was just based on money?” And that’s where we stop and say, “Now wait a minute. Come on. Let’s work on this.” Nobody can solve this problem perfectly because we’re humans, but clearly there’s a gap that we’re either brushing over or for other agenda reasons ignoring. That really becomes problematic and that’s what we’re advocating.

Len Sipes:  Tim, we have a criminal justice system. I’ve been in it for over forty years. You’ve been in it for quite some time. We’re overburdened. We have high caseloads. We have literally thousands upon thousands of offenders entering and leaving the criminal justice system. We have severe budget cuts all throughout the United States. The local jails as well as the prison system are basically saying that we’re maxed out. We just don’t have the capacity to hold everybody that everybody wants us to hold. So there’s almost at times a natural inclination. I mean, this isn’t NASA. I mean, this is really dealing with thousands upon thousands of decisions and I mean, are we that precise? Are we that good within the criminal justice system that we can get it right the vast majority of times?

Tim Murray:  No. We check in our decision-making because we’re naming dollar amounts associated with individual charges, not even based on the background on the individual, but simply by what the charge is. The way they all decided in this country, Len, from coast to coast is judges have a card on the bench and that card relates to an offence – let’s say car theft. And it names an amount and that’s what car theft costs in that jurisdiction. It doesn’t matter if you’re Jesse James or Mother Teresa.  That’s what it costs and for the very reasons you’ve just articulated – the fact that we’re in an economic downturn, the fact that public treasuries are smaller than they’ve been in any time in our lifetimes – we must make the best use of the resources available to our justice system. We must make the best decisions we can possibly make. It’s time to throw away the archaic way of doing business of the last hundred and fifty years from an economic standpoint and from a fairness standpoint and from a safety standpoint. It is a win all round. Will it have failure? Absolutely, it will. Is it foolproof? No, sir, it is not. Is it light years better than the system we currently suffer from? Undoubtedly.

Len Sipes:  Is it fair to say that both you gentlemen want an individual supervised regardless of how they’re released, whether it be monetary bond or whether it be by a Pretrial Services Agency? You want them supervised regardless, correct? You want them to be held accountable. Drug tested. You want them to check in with people.

Tim Murray:  Yeah.

Will Marling:  I mean, there should be accountability when a person is charged with a crime. The level and nature of that, of course, is what we’re considering, but any victim wants to know that the person that injured them is going to be held accountable and even before the official court proceedings, the official justice processes, we want to believe that their safety is still in view and they’re being held in good measure, so sure. Absolutely.

Len Sipes:  So the bottom line…

Tim Murray:  I think that accountability reaches the justice professionals that staff of criminal justice systems throughout the country and I don’t believe that we have even come close to the kind of professional accountability, which with regard to victims that is essential to justice. I think victims, as I kind of mentioned at the beginning of the show, are oftentimes simply pushed to the side by this system and by system actors. I think accountability extends not only to the defendant, but to the justice system as well. When a victim shows up at the door of the Pretrial Services in a community and says, “I got hit over the head last night. I hear the perpetrator was in court. Where do I go?” They should get clear and concise and accurate information as how to connect with victims coordinators; how to reach the prosecutor’s office before that court hearing, where and when that hearing will occur and what their options are regarding the same.

Just as they should have explained to them clearly and concisely what the defendant’s obligations are, how we needs to be held accountable if, in fact, he is released. I would argue with you that the law should release me on the year that defendants who post money have done nothing, but move cash from one pocket to another. Money does nothing to ensure community safety. It simply separates those who have I from those who don’t and I don’t believe money is part of this conversation in a meaningful way when it comes to determined pretrial release.

Len Sipes:  Well, you‘re not going to hear any disagreement from me, Tim, in terms of the fact that the criminal justice system really does need to…I mean, it just can’t be a victim’s coordinator. It has to be an entire fundamental change and we have all of these federal and state constitutional amendments talking about what it is that we could do and what it is that we should do. I mean, these are mandates, but I think it’s a philosophical understanding that we have to do a much better job of protecting victims’ rights, but from talking to practitioners, as you do, sometimes I just simply get the sense that we’re exhausted by the process and victims. It’s like “Oh my God! I just don’t have the time to sit with this person for half an hour. I’ve got a thousand other things to do.” I sometimes feel that that’s the dichotomy of very overworked, overburdened, challenge criminal justice system that just lacks the penance, the wherewithal, to give victims the sensitivity and the time that they deserve.

Tim Murray:  Yeah, but we’re not talking about handholding. We’re talking about delivering as public servants essential services that individuals are guaranteed. Whether that guarantee comes under the Bill of Rights for the right to bail or that comes as to the rights that each victim of crime has. We can’t turn our back on either set of lives. We are in the business of serving the public and we have to get better and smarter and more effective at doing that job.

Len Sipes:  We’re out of time and one of the things that I do want to do…Will, let’s do this again in a couple of months because I feel that we’ve barely scratched the surface on this issue, but I really am appreciative that you and Tim were coming on today to discuss this whole issue of pretrial and victims’ issues. It just needs further explanation, I think, but Will Marling, our guest today, Executive Director of National Organization for Victim Assistance; the web address for NOVA – www.trynova.org. Tim Murray, the Executive Director of the Pretrial Justice Institute, www.pretrial.org.

Again, as I said at the beginning of the programs, we’ve been asked to promote the National Reentry Resource Center, www.nationalreentryresourcecenter.org, a project of the US Department of Justice of the Office of Justice Programs and the American Parole and Probation Association. Again, they do want you to respect and honor the sacrifice of parole and probation agents, what we call Community Supervision Officers here in the District of Columbia. www.appa-net.org. Ladies and gentlemen, this is DC Public Safety. We really appreciate all of your calls and letters and interaction with us. Watch for us next time as we explore another very important topic in today’s criminal justice system. Please have yourselves a very, very pleasant day.

[Audio Ends]

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