Pretrial Pilot Presentation

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Tennessee Pretrial Pilot Project: Pretrial Standards and Practices

Antonio Nesbitt

January 2016

Crime and Justice Institute at CRJ

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Presentation Overview

•Project Objectives & Stages

•Pretrial Release Decision

•Pretrial Process

•Pretrial Risk Assessment

•Pretrial Release Conditions

• Summary

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Project Objectives & Stages

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Project Objectives

• Identify local jurisdiction’s pretrial system features and needs

• Identify local jurisdiction’s pretrial performance baseline

•Build jurisdiction’s capacity to select and implement pretrial practices and pretrial risk assessment with fidelity

•Assess performance of pretrial practices and pretrial risk assessment & modify practices and assessment based on data

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Project Methods

•Conduct comprehensive system assessment• Identify jail and system drivers and pretrial performance

baseline• Review pretrial practices, system capacity and resources • Describe case flow process from arrest/citation through

disposition

•Educate justice system on pretrial risk assessments and pretrial practices• Vet existing pretrial risk assessments or develop pretrial risk

assessment

• Identify pretrial practices that will support findings and recommendations from system assessment

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Project Methods

• Implement pretrial practices and pretrial risk assessment with fidelity• Develop and adhere to implementation plan• Set up process to ensure proper scoring of risk tool

•Evaluate implementation of practices, pretrial risk assessment performance and assess impact on pretrial performance baseline

•Use data to make improvements – if appropriate, to existing pretrial practices and risk assessment

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Project Stages

• Systems change and transform – passing through a sequence of steps – with each step moving closer toward the intended outcome (Morgan, 2006)

• Implementation stages map out clear process to reach intended outcomes• Exploration/Evaluation • Installation• Initial implementation • Full implementation

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Project Stages

Exploration InstallationInitial

ImplementationFull

Implementation

National Implementation Research Network (NIRN) © 2013 Blase and Fixsen

• If one or more stages is incomplete, it can disrupt the fidelity of implementation and impact long-term sustainability

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Project Stages

• Implementation can take 2 to 4 years to complete• Well constructed practices to support existing resources and

capacity• Ensure a process to maintain fidelity and sustainability• Supports delivery of research-based practices

•Conducting all stage-appropriate activities is necessary for new practices to be successful• Supports time needed to increase buy-in and address

concerns of new practices

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Pretrial Release Decision

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•Purpose & significance• Provide due process• Maintain judicial integrity by securing defendant’s

appearance• Demonstrate consideration for public safety

(ABA Standards of Pretrial Release)

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• Balancing act between• Honoring presumption of innocence, providing due process,

and affording all legal and constitutional rights of defendantsWITH• Maintaining integrity of judicial process, assure court

appearance, and considering need to protect public safety

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•Bail Reform Act of 1984• Allows for detention where necessary to protect community

safety• Detention hearings are required in cases involving violence

and certain drug offenses

•United States v. Salerno, 481 U.S. 739 (1987)• Upheld the Bail Reform Act of 1984

• Detention is the limited exception

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•Difficult to make an informed pretrial release decision

•Timeframe to make the pretrial release decision is very brief • Initial court appearance is guided by statute • Limits ability to collect reliable and objective information to

inform pretrial release decision

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•Measuring & Managing Risk • Concept of risk is inherent with pretrial release decision

• Risk of failure to appear

• Risk to public safety

• Justice system is expected to take this risk • Focus should turn to

• How well we measure risk

• How well we manage risk

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•Measuring Risk• Administer an objective pretrial risk assessment instrument• Report likelihood of risk of pretrial failure to court to inform

release decision

•Managing Risk • Provide least restrictive options to mitigate risk• Concept of risk principle applies to pretrial

• Release low risk with no to few conditions

• Release moderate risk with only the conditions needed to ensure court appearance and protect public safety

• Detain those who are of highest risk – and if released, provide the necessary conditions to reduce pretrial failure

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Pretrial Process

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Pretrial Process

•The pretrial process starts with initial contact with law enforcement and lasts through case disposition

•Many decisions are made by various justice system stakeholders • Each decision provides an opportunity to support the

purpose and significance of the pretrial release decision

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The Pretrial Process

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Alternatives to Detention

•Citations in Lieu of Arrest

•Use of Summons in Lieu of Arrest

•Release on recognizance(ABA Standards of Pretrial Release)

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Pretrial Release and Standards

• Jurisdiction should establish a pretrial services agency to• Conduct first appearance inquiries• Develop and provide appropriate and effective supervision• Present information to judge

• Risk of failure to appear

• Risk of new criminal activity(ABA Standards of Pretrial Release)

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Pretrial Services

•Two primary functions• Administer an objective risk assessment that predicts failure

to appear and new arrest pending case disposition• Provide court ordered supervision to moderate and higher

risk defendants

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Pretrial Services

•Benefits• Provides a reliable source of information to inform pretrial

release decision• May be able to verify additional information for the court• May be able to perform pretrial supervision and support

release conditions

•Challenges• May not be able to administer pretrial risk assessment to all

defendants • Supervision capacity and resources may be limited

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Pretrial Risk Assessment

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A Shift to an Objective View

•Research shows that the use of actuarial risk assessments results in a higher predictive validity than clinical or professional judgement alone (Latessa and Lovins, 2010)

•The Vera Point Scale• First pretrial risk assessment – not an actuarial risk tool• Developed in 1961

•Pretrial risk assessment instruments are developed to predict both failure to appear (FTA) and new criminal arrest (NCA) pending case disposition

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Pretrial Risk Assessment

•The current state of pretrial risk assessment research focuses on three areas• The lack of the use of a pretrial risk tool in most jurisdictions

• Slightly over 10% of jurisdictions use a pretrial risk tool

• Identifying the strongest predictors of pretrial failure • Static and Dynamic factors

• Distinguishing between which factors are predictive of failure to appear and new arrest pending case disposition

• The importance of validating the risk assessment tool on the population in which it is to be administered (Bechtel, Holsinger,

Lowenkamp & Warren, 2015; Bechtel, Lowenkamp, & Holsinger, 2011)

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Risk Factors

• Static Risk Factors• Historical factors that have been demonstrated to relate to

pretrial failure• Static means that these factors can’t change

• History of failure to appear, prior convictions, prior incarcerations, pending case

•Dynamic Risk Factors• Dynamic means that the factors associated with pretrial

failure can change• Substance abuse, employment

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Risk Factors

•Not all risk factors commonly found in pretrial tools are strong predictors of pretrial failure• Residence, alcohol, and current offense not consistently

shown to be significant predictors of FTA• Residence, current offense, and employment not

consistently shown to be significant predictors of NCA(Bechtel, Lowenkamp & Holsinger, 2011)

• Some risk factors are only predictive of one pretrial failure outcome meaning they do not predict both failure to appear and new arrest pending case disposition

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Risk Factors

•Many of the strongest predictors of pretrial failure are static risk factors – but not necessarily of both FTA and NCA • History of failure to appear • Prior misdemeanor convictions• Prior felony convictions• Prior violence• Current violence• Pending case• Age• Prior incarceration

(Mammalian, 2011; Bechtel, Lowenkamp, & Holsinger, 2011; Laura & John Arnold Foundation, 2014)

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Pretrial Risk Assessment Tools

•Virginia Pretrial Risk Assessment (VPRAI)

•Ohio Risk Assessment System – Pretrial (ORAS-PAT)

•COMPAS – Pretrial

•Public Safety Assessment – Court (PSA-Court)• None of these pretrial tools have been subjected to a

rigorous peer-review process (Bechtel, Holsinger, Lowenkamp, & Warren, 2015)

• Many jurisdictions develop tools with local or state data• With the exception of the VPRAI, the other pretrial tools

have not been independently reviewed – but even the VPRAI has shown mixed results in terms of predictive validity

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Implementation Challenges

•Challenges to implementing pretrial risk tools• Time Constraints• Money bail schedules• Local capacity• Subjective risk assessment• Lack of buy-in & support from justice agency stakeholders• Data quality limitations

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Implementation Challenges

• Jurisdictions select tools that are either developed or validated on a different population without considering their target populations characteristics

•Pretrial agencies may not always prepare for a future evaluation of the instrument’s predictive validity

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Pretrial Risk Tools – Next Steps

•Provide training & coaching to pretrial services to support accurate scoring of pretrial tool

•Ensure that the pretrial risk assessment accurately predicts FTA and NCA for target population & appropriately classifies defendants by risk level

•Expand use of pretrial risk tools at the earliest point possible in the process to inform the pretrial release decision

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Pretrial Release Conditions

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Release Conditions

•The use of release conditions is a substantial component of the pretrial process in attempting to ensure a defendants appearance in court

•Depending on the jurisdiction, a variety of release conditions may be available

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Release Conditions

•Many pretrial conditions and interventions follow closely the interventions adopted to address and influence a post-conviction population

•Most of these interventions have not been thoroughly tested for their effectiveness

(Bechtel, Holsinger, Lowenkamp, & Warren, 2015)

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Release Conditions

•Pretrial release should be done under the least restrictive conditions• Courts must have alternative release choices• Intended to limit detention• Can increase economic and other hardships

• One study indicated a 20% increase in unemployment after being detained for 3+ days

• Disruption to financial stability and residential status was also reported for defendants detained 3+ days (Holsinger & Bechtel, 2015)

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Release Conditions

• Standard Conditions• No arrest contact with law enforcement• Updating the court with a current address• No contact with victims and witnesses

• Specific Conditions• Maintain employment• Compliance with electronic monitoring• Compliance with alcohol and drug testing• Pretrial supervision

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Release Conditions

•Although due process challenges arise when such conditions are viewed as blanket conditions, statute and common practice often result in certain conditions being applied to the vast majority of defendants, regardless of their risk

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Release Interventions

•Pretrial Supervision• Intended to facilitate, support, and monitor defendants

compliance with pretrial conditions• One study examined the effectiveness of pretrial supervision

contact type and frequency in Philadelphia; the results offered some promise that pretrial supervision may help reduce failure to appear rates and new arrest rates (Goldkamp &

White, 2006)

• Pretrial supervision differentiated by risk level may support reductions in pretrial failure, along with staff training on cognitive interaction skills (Danner, VanNostrand & Spruance, 2015)

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•Court Date Notification• Studies have shown that there is some benefit to introducing

this process into a jurisdiction• Financial, capacity, and resource burden (Bechtel, Holsinger, Lowenkamp &

Warren, 2015)

•Electronic Monitoring• Common tool during the post-conviction phase• There is no conclusive evidence of its effectiveness in

reducing failure to appear or new criminal arrest pending case disposition (Bechtel, Holsinger, Lowenkamp & Warren, 2015; VanNostrand, Rose, &

Weibrecht, 2011)

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•Alcohol and Drug Testing• Research revealed that there was no significant difference in

pretrial failure when substance abuse testing and treatment conditions were assigned to defendants in the two highest risk level categories

• However, lower-risk defendants who were required to participate had higher failure rates than their lower-risk counterparts who were not(Bechtel, Holsinger, Lowenkamp & Warren, 2015; VanNostrand & Keebler, 2009)

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Summary

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Summary

•The pretrial stage provides multiple opportunities for defendants to be diverted out of the system and to use the least restrictive options

•The courts are under great pressure to make a pretrial release decision quickly and often with limited information

•Risk is inherent in our justice system – as use of detention is to be the carefully limited exception

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Summary

•Measuring and managing risk is critical to both reducing the likelihood for pretrial failure; however, it has to be implemented within a jurisdiction’s capacity and resources• Using a pretrial risk assessment will offer the court with

objective information to inform the pretrial release decision• Providing supervision and services appropriately requires

using the least restrictive options• Research is needed to identify which practices are the most

effective in reducing pretrial failure

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Summary

•Project will support each jurisdiction’s specific system needs and pretrial features

•Each jurisdiction will be actively involved in the selection/development of a pretrial risk assessment and pretrial practices

•Technical assistance will direct support toward implementing the risk assessment and practices with fidelity

•Ongoing evaluation of implementation will occur to support sustainability of pretrial efforts

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Questions

•Contact Information:Antonio [email protected]

Jesse [email protected]

Kristin [email protected]

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Pretrial Pilot Presentation

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