Author: stagingsjc

“I’ll bail you out”—we say that phrase so often it has become an idiom divorced from meaning. The concept of having to pay to secure your freedom has become so ingrained in American society that people rarely stop and ask “why?” This is America—you are innocent until proven guilty. On the eve of Labor Day weekend, when Americans celebrate the hard-fought victories of workers who organized for fair wages and safe working conditions, we must examine the for-profit, commercial bail bond system’s impact on today’s working families and ask why people presumed innocent remain incarcerated unless they give the court—or a for-profit bail bond company—their hard earned money.

This is a poignant question here in New Orleans. Long the most incarcerated city in the most incarcerated state in the most incarcerated country on this planet, our local jail population has come down from the post-Katrina high of 3,400. Yet we still incarcerate people in our jail at a rate twice the national average. As of today our local jail population is roughly 1,800. Of that number, approximately 1,400 are pretrial and presumed innocent.

The answer is obviously not to simply open the doors of the jail and let everyone out until their trial, but to determine who does not belong in jail pretrial. The U.S. Constitution mandates that an individual accused of a crime may only be incarcerated pretrial if they pose a flight risk, or are a danger to public safety if released.

Yet the commercial bail bond system does not align with the goal of detaining only those who pose such risks, nor does the long-held assumption that a person is less likely to flee if required to give the court something of value as collateral. What does the ability to pay have to do with a person’s risk to public safety? And what if he or she cannot afford the bond set for reasons that have nothing to do with risk, such as poverty? For those who cannot pay the full amount of their bond, the bail bond industry will front the money, in exchange for a nonrefundable fee, of course (usually ten percent of the total bail amount). The better question to ask may be: why should people’s freedom depend on their wealth?

The New Orleans Pretrial Services program (NOPTS), and similar service agencies in major cities all over the country, attempt to render those questions moot by establishing an objective screening system to determine a person’s risk of flight or threat level. A pretrial services agency typically screens every arrested person using factual, objective metrics, such as criminal history, employment history, family situation, the seriousness of the person’s charge, and other factors. This screening tool calculates a risk score the judge can then use to determine whether a person poses a risk and should be detained pretrial. Ability to pay never enters the equation.

It is critical to shift the presumption away from requiring arrestees to post a bond, and instead use an objective system to help determine actual risk. NOPTS helps the New Orleans criminal justice system, and the magistrate judge in particular, accomplish this.

The city is participating in the MacArthur Foundation’s Safety and Justice Challenge, and has set a goal of reducing the local jail population to fewer than 1,200 by 2018. Projections further out anticipate a possible reduction to 1,000 total detainees by 2020—an incarceration rate that would finally align New Orleans with the national average. But these reductions are only possible if New Orleans and its citizens take a step back and examine why the criminal justice system is the way it is, and whether we have erected barriers to pretrial release that siphon money out of working class communities for reasons that have no bearing on public safety.

NOPTS has already played a large role in reducing the pretrial jail population by providing fact-based assessments of risk. While NOPTS has been met with some resistance, there is momentum building for fairness and justice in our criminal justice system. As city leaders and the community become more aware of just how many poor people are held in jail for no other purpose than the profit of the bail bond companies at the cost of millions of dollars to taxpayers, more and more people will begin to ask: “why?”

This post originally appeared on the Vera Institute of Justice’s Current Thinking Blog. 

Susan Guidry is the City Councilmember for District “A” and chair of the council’s Criminal Justice Committee.

We are elected prosecutors from the two coasts of Florida. As prosecutors, we are charged with making decisions on each case based on the merits of that case. Rarely do we look beyond the individual cases in front of us to understand the aggregate impact or trends of our individual decisions. We believe that prosecutorial success lies in the balance between making the best case-level decisions and gauging the cumulative effects of those decisions on community safety and well-being.  Indeed, appreciating the bigger picture is critical to developing evidence-based solutions to promote public safety, build trust in the criminal justice system, and ensure all people are treated equally.

Though we sit on opposite sides of the political aisle, we both took office four years ago sharing the common goals of establishing transparent, accountable, equitable and efficient prosecutor offices.

In 2017, with support from the John D. and Catherine T. MacArthur Foundation’s Safety & Justice Challenge, our offices, along with those in Chicago and Milwaukee, began a partnership with Florida International University and Loyola University Chicago to develop a set of measures—the Prosecutorial Performance Indicators (PPIs)—that track office-wide progress over time to advance these shared objectives.

The PPIs are intended to help prosecutors measure priorities and outcomes across their offices, including timely dispositions, racial and ethnic disparities, recidivism rates, and diversion outcomes. PPIs are comprehensive, impact-oriented, and available to any prosecutorial office across the nation.

We are proud to launch our prosecutorial data dashboards—the first of their kind in Florida—which post the PPIs. Only a handful of prosecutorial offices nationally have such transparency and analytical tools. With these public dashboards, the public too will have an opportunity to gauge our success in meeting certain objectives and pose questions about our work.

This tool affords prosecutor offices the chance to meet the mounting challenges we all face in the criminal justice system with data informed solutions.  Simply, it offers a way to do things differently—and better.

Necessity is the mother of invention, and cities and counties participating in the Safety and Justice Challenge have learned a great deal from measures taken to save lives during COVID-19. What’s more, many of these lessons will prove valuable in the years ahead, both as the world continues to fight the virus and afterwards.

With strategies to reduce jail populations already in place and key decision-makers already at the table working together, many SJC sites were better positioned to respond to the crisis than jurisdictions not already engaged in these efforts. For example, sites deployed new or existing Population Review Teams to identify those who could be quickly and safely released to prevent spread of COVID-19 in jails and the broader community. The stakeholder collaboration and evidence-based strategies already in place through the SJC allowed many sites a head start in mitigating the spread of COVID-19.

Without exception, all the cities and counties involved in the Safety and Justice Challenge managed to substantially reduce their jail populations during the pandemic, without jeopardizing public safety. In many cases, average daily jail populations reached levels lower than at any point in the last quarter century. For example, Buncombe County in North Carolina reduced its jail population by 42% at its lowest point, San Francisco County, California, by 35% at its lowest point, and Allegheny County in Pennsylvania by more than 30% at its lowest point.

Without exception, all the cities and counties involved in the Safety and Justice Challenge managed to substantially reduce their jail populations during the pandemic, without jeopardizing public safety.

However, local justice systems had varying levels of success in tackling the virus despite testing and control measures. East Baton Rouge Parish in Louisiana, for example, saw only one positive COVID-19 test at its pretrial detention facility. In Buncombe County, there have been no COVID-19 infections in the jail, largely due to a strict initial quarantine program and the ability to keep all incarcerated people in single cells (one person arrived at the jail with COVID-19 but did not pass the virus to others). Among detainees in Cook County, Illinois, a total of 1,096 detainees have tested positive as of December 11, 2020. Many people booked into the jail are coming in with the virus, rather than catching it inside the jail – further demonstrating that reducing jail bookings is critical to preventing spread of the virus.

How did cities and counties in the Safety and Justice Challenge respond to COVID-19? And what have we learned?

1. Reducing Arrests and Jail Bookings, Increasing Releases Helped

In cities and counties participating in the Safety and Justice Challenge across the country, justice system actors worked together to reduce the number of people being booked into jails, and to prioritize case review for people in custody so that they could be released, where possible. They also worked together to prioritize release of people with vulnerable health conditions, who could safely be released pretrial or while serving their sentences. There has been collaboration with police to issue summonses in lieu of arresting people on nonviolent misdemeanor charges, when safe to do so. Many cities and counties even suspended arrests for some felonies and for certain warrants which could be resolved in the field. In Clark County, Nevada, prosecutors aggressively screened cases and quickly diverted or dismissed those that were not likely to go forward or that didn’t present a threat to public safety.

In Multnomah County, Oregon, more people were released on their own recognizance. In New Orleans, the JFA Institute found that defendants released from custody had very high overall success rates — nearly 80% have no “failure to appear” or re-arrest. And 92% of defendants in the lowest risk category attended all required court appearances. In Allegheny County, three-month rates for people reentering the system who had been released at the start of COVID-19 were slightly lower than comparable three-month reentry rates of people released from jail during the same time period in 2019.

In Minnehaha County, South Dakota, justice system actors achieved a 53% reduction in arrests and jail bookings in March 2020, compared to the previous month. They attributed it to increased use of cite and release practices, and to setting lower bonds and operating a lower fine schedule. New Orleans Police Department reduced arrests for non-violent charges by 63% compared to the same period in 2019, with overall arrests down 59%. Lake County, Illinois, reduced arrests by 27%. The Baton Rouge Police Department expanded its cite and release policy to include traffic offenses, nonviolent misdemeanors and low-level felony charges.

2. Changes in Bail Protocols Have Proven Successful in Safely Reducing Jail Populations

Cities and counties across the country made substantial changes to their bail protocols during COVID-19. For example, The Los Angeles County Sheriff, with the support of the Public Defender and other agencies, instituted a policy of releasing anyone with $50,000 bail or less, in specified cases. The State Superior Court also reset bail amounts under the existing bail schedule to $0 bail for designated offenses. While the changes expired as part of the state’s emergency bail order in June 2020, Los Angeles County has extended this order locally to remain in place as part of the ongoing pandemic response. Clark County, Nevada shifted the burden of proof in bail hearings, requiring prosecutors to show why a defendant must be kept in custody. St. Louis County connected people in jail who couldn’t afford their bail with The Bail Project to help secure their release.

Despite some naysayers, we know this type of bail reform does not put the public at greater risk. New academic analysis shows Chicago area bail reform efforts since 2017 have not increased new criminal activity. Creative and evidence-based steps like these paved the way for other jurisdictions to follow suit and respond to the pandemic.

3. Technological Tools Kept Systems Operating

Just as new apps like Zoom, Microsoft Teams and Slack have changed working life during the pandemic, technological innovations have transformed justice systems operations in the era of social distancing. Many sites began holding video and telephone appearances in their courtrooms, rather than in-person hearings. In Palm Beach County, Florida, a new text message court reminder system reduced failure to appear rates from 8% to 3%. St. Louis County bought tablets for the jail so that attorneys could conduct video meetings with their clients more easily, expanding on the Public Defender’s existing initiative to represent people at their first court appearance.  Probation and Parole Departments also instituted virtual check-ins that aided in reduced revocations back to custody.

4. A Focus on Behavioral Health Improved Reentry Success

Cities and counties have continued to invest in keeping people from being rearrested or being arrested in the first place. They have provided housing, food, medication, transportation, and other service referrals for people being released from jail so that they don’t cycle back into the system. Recognizing the importance of meeting these social services—which can be a challenge, particularly in larger jurisdictions—sites are investing more deeply in reentry resources. Palm Beach County, for example, has provided permanent supportive housing with wraparound services for 12 people experiencing homelessness with behavioral health challenges as part of a Safety and Justice Challenge-funded pilot program. In the two-year period before they were housed, these individuals had collectively been arrested 64 times and spent 704 days in jail.

5. Reducing Racial and Ethnic Disparities Will Require Renewed Commitment

COVID-19 further exposed racial inequities in America’s jails. In many cases, we saw racial disparities increase across participating cities and counties as a larger percentage of white people were released from jail than Black people. In Palm Beach County, Florida, for example, white people were twice as likely to be released compared to Black people from February to July 2020. In Buncombe County, the portion of jail population that is Black increased steadily from 23% in February to a high in July of 33%, compared to a county-wide population rate of around 8%.

How We Can Build on Our Momentum

Several cities and counties plan to build on changes they have made during COVID-19 to keep any substantial rebound to a minimum and continue releasing more people with low-level charges. For example, Los Angeles County plans to close its Men’s Central Jail within a year, reducing more than 3,000 beds from its pretrial capacity. San Francisco has already closed one of its jails. Meanwhile, Clark County, Nevada plans to keep its emergency measures in place until July 2021 and use the data collected to move forward from there.

—Wendy Ware is the President of the JFA Institute, which works in partnership to evaluate criminal justice practices and design research-based policy solutions.

With the growing recognition of the need to create alternatives to arrest and prosecution for low-level offenses, many innovative diversion alternatives are emerging. While there are effective post-arrest (or post-booking) diversion programs, changing the traditional criminal justice system in meaningful ways takes bold leadership and vision.

Tallahassee and Leon County, Florida, leaders have taken the bold step to create a community partnership that diverts first-time misdemeanor offenders to a pre-arrest behavioral health intervention program. The Pre-arrest Diversion Program (PAD) is now seen as a successful alternative to arrest and a law enforcement tool for improving public safety and community-police relations.

One of the factors that makes PAD unique is that it’s pre-arrest. The PAD program started in 2013 as the first program in Florida — and based on extensive research, possibly the first in the nation — to give law enforcement officers the formal discretion to divert a misdemeanor offender away from the traditional criminal justice system without first making an arrest, either a physical arrest or issuing a citation-in-lieu of physical arrest. Even though incarceration and prosecution may be avoided by post-arrest diversion, in most states the offender still has an arrest record with the arresting agency. It is well documented that having an arrest record jeopardizes current and future employment, compromises student loans, and blocks access to certain housing opportunities. Because the PAD program is pre-arrest, successful diversion and program completion means the offender does not have an arrest record. Program participation is tracked through an online application available to all law enforcement agencies.

The PAD program expands the concept of Florida’s successful Juvenile Civil Citation program to adults. Also known as an adult civil citation program, the PAD model provides an alternative to arrest for many low-level misdemeanor offenses that result from an error in judgment, out of control emotions, or someone simply making a mistake. Eligible offenses approved for diversion by Tallahassee and Leon County law enforcement officers include disorderly conduct, trespass, criminal mischief, petit theft, underage possession of alcohol, possession of marijuana under 20 grams, possession of drug paraphernalia, non-domestic simple battery, and non-domestic simple assault.

Based on the offender not having an arrest record and cooperating fully with the law enforcement officer, as well as consideration of the victim’s input, the officer has the discretion to offer diversion into the PAD program. An offender can voluntarily choose not to participate in the PAD program and instead opt for their day in court. If diversion is accepted, the offender enters an intervention program operated by DISC Village – a non-profit behavioral health agency in Tallahassee. During program intake at DISC Village each person receives a behavioral health assessment and is screened for drug use. Based on the results, an individualized intervention plan is developed. The participant then has 90 days to complete the intervention plan, as well as a mandatory 25 hours of community service. Participants pay the behavioral health company $350 for the intervention services. This is approximately the same cost as court fines and fees if they were to be criminally prosecuted. Payment plans and waivers are available for those who cannot afford the PAD fee. No one is denied participation for the inability to pay. Failure in the program results in the participant being arrested and prosecuted for the original offense.

Avoiding a criminal arrest record has proven to be a great incentive, and the evidence-based intervention services provided by DISC Village have significantly impacted recidivism for participants. Since the PAD program started in March of 2013, law enforcement officers with the Tallahassee Police Department and the Leon County Sheriff’s Office have diverted over 1,000 offenders. Of the nearly 80% of diverted offenders who successfully complete the program, only 6% were subsequently rearrested. Data used to determine the rearrest rate was provided by the Florida Department of Law Enforcement to the program’s evaluator at Western Carolina University. The statewide data reflected arrests for PAD participants in any Florida jurisdiction following participation in the program.

Improving public safety by reducing recidivism is a primary goal of the PAD program. A 6% rearrest rate is a significant reduction when compared to offenders prosecuted through the criminal justice system.  While there is little formal research related to recidivism for first-time misdemeanants, in Leon County prior to the PAD program the estimated recidivism rate for this category of offenders was 40%. A long-term study conducted by the Oregon Criminal Justice Commission found the average rearrest rate was approximately 45% for first-time misdemeanor offenders processed through Oregon misdemeanor courts.

There are many benefits for using pre-arrest diversion. The offender and law enforcement receive the most obvious – improved efficiency for the officer and the offender has an opportunity to avoid an arrest record and receive intervention services. The program also reduces the workload for the already overloaded misdemeanor court system. During FY15, over 65,000 adults with no prior record were arrested in Florida and charged with a misdemeanor offense. If PAD programs were adopted throughout the state a significant portion of these individuals could have been directly diverted by law enforcement.  The unnecessary and long-lasting harm that arrest records cause people who are not a true threat to public safety, could have been avoided and scarce criminal justice resources used for more important cases.

Long-term reform is only possible when community leaders decide to break away from the cycle of arrest and rearrest that results from the current revolving-door approach of the criminal justice system. There are many people for whom incarceration is necessary because they are a true threat to public safety. However, as most law enforcement officers will confirm, there are many times when a crime is committed as a result of heated emotions or poor judgment… we all make mistakes. Under these circumstances, a community is better served if officers are given the discretion to divert away from the criminal justice system, and instead of making an arrest the offender receives intervention services that improve public safety.

There is no doubt that in Tallahassee and Leon County, due to bold community leadership, law enforcement officers have an effective tool for handling first-time misdemeanor offenders. Lives of hundreds of people have remained intact because they avoided an arrest record, public safety has improved through reduced recidivism, law enforcement relations with the community improved because officers have an alternative to arrest, and the community partnership has no cost for the local government. With these types of outcomes, the PAD program is a model ready for widespread adoption.

This post originally appeared on the blog of the International Association of Chiefs of Police. 

New academic analysis shows Chicago area bail reform efforts since 2017 have had no impact on new criminal activity or new violent criminal activity of those defendants released pretrial.

Overall crimes rates in Chicago, including violent crime rates, were not any higher than expected after the implementation of the effort. The analysis echoes that performed in other areas where similar bail reform efforts have been undertaken such as New York, New Jersey, and Philadelphia.

You can read the full report here. 

Everyone wants safe communities. But our research suggests that releasing people on their own recognizance does not make communities less safe. And taking money away from people to secure their release does not make communities safer. Monetary bail, however, does impose a burden on those individuals and their families who are least able to afford it.

Like bail reform efforts in other cities, Chicago’s initiative demonstrates that it is possible to decrease the use of monetary bail and decrease pretrial detention – and lessen the financial, physical, and psychological harms that come with pretrial detention – without affecting criminal activity or crime rates.

In Chicago, the effort began on September 17, 2017, when the Chief Judge of the Circuit Court of Cook County issued General Order 18.8A (GO18.8A) to reform felony bail practices in Cook County.

GO18.8A established a decision-making process for felony bond court judges. Under the order, bond court judges were to first determine whether a defendant should be released pretrial and, if not, hold the defendant in jail. If the defendant could be released, GO18.8A created a presumption of release without monetary bail; however, if monetary bail was necessary, the order stated that bail should be set at an amount affordable for the defendant. In the end, GO18.8A established a presumption of release without monetary bail for the large majority of felony defendants in Cook County and encouraged the use of lower bail amounts for those required to post monetary bail.

After GO18.8A, there was a significant increase in the use of I-Bonds, or individual recognizance bonds for which defendants are released without having to post monetary bail.

The impact of this shift was dramatic: 3,559 additional people received an I-Bond in the six months after bail reform began. The real impact of this change was that none of these defendants had to post monetary bail to be released pretrial, saving these defendants and their families $13.6 million in avoided bond costs.

D-Bond amounts, where a defendant pays 10% of the bail amount to secure release from jail­–were also lower after bail reform. Before the effort began, the average was $9,316 to secure release, compared to $3,824 afterwards.

Combined with increased I-Bond usage, our analysis showed that Chicago saved defendants and their families more than $31.4 million in the six months after the initiative was introduced. That means bail reform in Chicago allowed defendants and their families to have $31.4 million available to be used for rent, food, and medical care while their cases were being resolved.

Likewise, the initiative did this without affecting new criminal activity of those released or increasing crime.

Bail reform efforts across the United States have accelerated in recent years, driven by concerns about the overuse of monetary bail, the potentially disparate impact of pretrial detention on poor and minority defendants, and the effects of bail decisions on local jail populations.

Proponents of bail reform advocate for reducing or eliminating the use of monetary bail, arguing that many defendants are held in jail pretrial solely because they cannot afford to post bail. Opponents counter that reducing the use of monetary bail or increasing the number of people released pretrial could result in more defendants failing to appear for court.

A debate has also played out in the media regarding the link between GO18.8A and possible diminished safety, but until our analysis, a rigorous, objective, external assessment has been lacking.

Ultimately, we found that money should not be the mechanism by which the court determines which people to hold and which people to release. Opponents of bail reform may continue to argue that reducing the use of monetary bail and increasing the number of people released pretrial will result in more defendants committing more crimes while on pretrial release. But that is not what happened following bail reform in Cook County, consistent with experiences following bail reform in New York, New Jersey, and Philadelphia.

 —Dr. Don Stemen is an Associate Professor and Chairperson in the Department of Criminal Justice and Criminology.

—Professor David Olson is a Professor in the Department of Criminal Justice and Criminology at Loyola University Chicago and is also the Co-Director (with Diane Geraghty, Loyola School of Law) of Loyola’s interdisciplinary Center for Criminal Justice Research, Policy, and Practice.