New Jersey releases jail inmates in the face of pandemic

On Sunday, March 22, New Jersey Chief Justice Stuart Rabner signed an order that had been negotiated by criminal justice stakeholders, including the ACLU-NJ. All people serving sentences in county jails across the state are subject to the order, although prosecutors can challenge the release of specific individuals where they contend there exist significant risks to the person being released or to public safety. The order could impact up to 1,000 people incarcerated in county jails.

The order (PDF) does not commute people’s sentences, but instead orders their temporary release during the COVID-19 public health crisis. At the conclusion of the emergency, judges will determine whether any sentences should be commuted. The Order takes extraordinary steps to prevent unnecessary incarceration or superfluous interactions with the criminal justice system altogether during this time, such as suspending most outstanding warrants and preventing in-person reporting to probation officers.

The order coincides with heroic efforts from the Office of the Public Defender to secure the release of many of their clients from pretrial detention in county jails. The efforts of public defenders have been met with success in many counties due to the defenders’ tireless work, as well as prosecutors’ understanding of the practical benefits of reducing jail populations by reconsidering requests for pretrial detention in this unprecedented time.

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Chicago judges ignore risk-assessment in bail decisions

Judges in Chicago's Cook County routinely make bail decisions for crime suspects contrary to what the court's new risk-assessment system calls for, The Crime Report.
A review of more than 1,500 cases this year obtained by the Chicago Sun-Times, found that he Cook County sheriff’s office showed judges’ bail decisions differed from the guidelines about 85 percent of the time. The sheriff’s study found bail decisions were “inconsistent,” even when defendants’ backgrounds and the charges they faced were factored in. The 90-page study, the results of which Chief Judge Timothy Evans disputes, found that the amount and conditions of bail varied widely depending on which judge was presiding on a given day.

 Illinois Supreme Court Justice Anne Burke, who pushed for the new system, said recently, “One of the key problems with our bond court judges is not just their unwillingness to apply the risk assessments when making their decisions but ... that they are not being sufficiently trained and supervised and are not being held accountable.”
The assessments assign a risk-level number that corresponds to a recommended bail. One aim was to identify more nonviolent suspects who qualify for release pending trial. Pat Milhizer, a court spokesman, says that in the three months before the assessments began, 52 percent of defendants in nonviolent, non-weapons felony cases were released; from January through May, that rose to 67 percent. Milhizer says training for judges doesn’t replace sound judgment. He points to a case in which the assessment system recommended releasing a man charged with gun possession even though he was accused of pointing the gun at someone and pulling the trigger twice, without it firing. Despite the recommendation, the judge set a significant bail.

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GateHouse: Rethinking bail: Protecting the public and the pocketbook

Matthew T. Mangino
GateHouse Media
June 14, 2015

Even as local government budgets become leaner, policy makers struggle to balance the ledger. One area of spending continues to be a burden with no real end in sight—corrections.
A significant amount of local revenue goes toward corrections—the local county jail—and half of those costs can be attributed to inmates in pretrial detention. Those are individuals who have been arrested, accused of a crime—not convicted—who remain in jail awaiting trial.
Pretrial detention increased at the same time “get tough” policies drove prison populations to unprecedented heights. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent. According to a study by Northwestern University, fewer people were released pretrial without bail and fewer were granted bond.
The primary purpose of bail is to insure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative. Many pretrial detainees are low-risk defendants, who, if released before trial, are highly unlikely to commit other crimes and very likely to return to court. Others present moderate risks that can often be managed in the community through supervision, monitoring, or other interventions.
Failure to grant pretrial release may come in the form of setting a bond that is beyond the defendant’s ability to post. Bond need not be a million dollars to be excessive. For some defendants a $2,500 bond, that may require a $250 payment to a surety company, is beyond reach.
What does that mean for taxpayers? If a defendant with a $2,500 bond can pay $250 he is out and on the street. If not, taxpayers are on the hook.
The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice. The report found that, at midyear 2011 about 61 percent of inmates in local jails were not convicted, they were awaiting court action on a pending charge—a rate that hasn’t changed since 2005—at an estimated cost of over $9 billion per year.
Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond.
“It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” Paul DeWolfe, the Maryland state public defender, told the New York Times.
Though monetary bonds has long been the law in a majority of states across the country, the practice is coming under increasing scrutiny in the face of recent research that questions its effectiveness and bipartisan efforts to reduce incarceration rates and correction costs.
Detaining an accused pre-trial also has a detrimental impact on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system.
According to the Times, Colorado and New Jersey recently voted to overhaul their bail systems. In several states, including Connecticut, New York and Arizona, either the state’s chief justice or lawmakers are calling for change to pretrial detention practices.
The first step toward easing the cost of pretrial detention is the ability to determine who needs to be detained and who doesn’t. The Department of Justice suggests a “focus on individualized assessments of risk, as opposed to making categorical assumptions based solely on charging and other factors.”
Once courts have the tools to determine who should be detained the system can explore detention diversions for those who don’t need to be in jail. House arrest, electronic monitoring and day reporting are all much more cost effective—and just as safe—than locking away a defendant awaiting trial.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Pre-trial detention examined

The high cost of detaining people in jails, estimated at $9 billion annually, has more of the nation’s 3,000 counties setting aside the political aspects of incarceration and considering pre-trial release programs, said Chris Rodgers, president of the National Association of Counties.

“The counties don’t see red or blue on this — they see green,” Rodgers told journalists at a national symposium on pre-trial detention issues held in May in New Orleans, reported the Pantagraph.

In Illinois, McLean County’s pre-trial release program is one factor contributing to a steady decrease in jail numbers. Like most of the country, McLean County has benefited from a drop in its crime rate in recent years, meaning fewer people being jailed.

The number of jail bookings has declined since 2009 when 8,355 people were processed, compared to 7,174 so far this year. The daily cost of keeping a person in the county jail is $50, said Emery.

State’s Attorney Jason Chambers compared jail and prison population to a glass of water: “If they are full and we pour more water in, then some of the water is going to come out. We need to make sure that we have the right water in the glass.”

A recent check of the jail’s population showed 59 inmates serving sentences and 168 others held in pre-trial detention. That puts McLean County slightly above the 61 percent pre-trial detention rate for about 750,000 people held in U.S. jails.

Although the number of people under some form of correctional supervision, including jails, prisons, probation and parole, dropped in 2011, the U.S. still leads the world with a supervision rate of one in 34 people. That mass incarceration rate starts in county courthouses where decisions are made on charges and the terms of bail bond.

To read more: http://www.pantagraph.com/news/local/crime-and-courts/pre-trial-program-strives-to-keep-some-inmates-out-of/article_4db93a3c-4707-11e2-8253-0019bb2963f4.html

The high cost of jailing

The Youngstown Vindicator
October 7, 2012

For the first time in nearly 40 years, the number of state prisoners in the United States has declined, according to the U.S Department of Justice, Bureau of Justice Statistics. While local jails have also experienced a modest decrease, those numbers may change with the diversion of state prisoners from state correctional facilities to local jails.

Why the diversion? State budget woes. However, local governments have not fared better. State aid and property taxes, which together account for more than half of local revenues, are dropping simultaneously for the first time since 1980, according to the Pew Center on the States.

A significant amount of local revenue goes toward corrections — the local county jail — and half of those costs can be attributed to inmates in pretrial detention. Those are individuals who have been arrested, accused of a crime — not convicted — who remain in jail awaiting trial.

Pretrial detention increased at the same time “get tough” policies drove prison populations through the roof. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent. According to a study by Northwestern University, fewer people were released pretrial without bail and fewer were granted bond.

In Pennsylvania, everyone charged with a crime other than first degree murder is entitled to bond. The criteria considered by the court includes the nature of the offense and the likelihood of conviction; employment status; family ties; length of residence in the community; prior bail history; criminal record and among other criteria, the defendant’s risk of flight.

CRIMINAL RECORD

In Ohio, bail considerations include “the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial of the case.”

The primary purpose of bail is to insure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative.

Failure to grant pretrial release may come in the form of setting a bond that is beyond the defendant’s ability to post. Bond need not be a million dollars to be excessive. For some defendants a $2,500 bond, that may require a $250 payment to a surety company, is beyond reach.

What does that mean for taxpayers? If a defendant with a $2,500 bond can pay $250 he is out and on the street. If not, taxpayers are on the hook.

An informal survey of Mahoning, Trumbull and Columbiana counties in Ohio and Lawrence and Mercer counties in Pennsylvania found it costs between $65 and $80 a day to house an inmate.

If that inmate who couldn’t pay $250 sits in jail for six months awaiting trial, the cost to taxpayers is about $12,000. As of Oct. 2, Lawrence County had 239 inmates; Trumbull County had 292 and Mahoning County had 520. All three institutions say that more than half of those inmates are in pretrial detention.

That is not just a local trend. According to the Bureau of Justice Statistics, at midyear 2011 about 61 percent of inmates in local jails were not convicted, they were awaiting court action on a pending charge — a rate that hasn’t changed since 2005.

Flight risk

Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond. Timothy Murray, executive director of the Pretrial Justice Institute, says as many as 65 percent of those detained pretrial are there because they cannot afford the bond.

The first step toward easing the cost of pretrial detention is the ability to determine who needs to be detained and who doesn’t. Last year, U.S. Assistant Attorney General Laurie O. Robinson said, “focus on individualized assessments of risk, as opposed to making categorical assumptions based solely on charging and other factors that really don’t tell us what we need to know.”

Ohio H.B. 86 passed last year provides for adoption of a single validated risk assessment tool for adult offenders. Once we know who needs to be detained we can explore detention diversions for those who don’t need to be detained. House arrest, electronic monitoring and day reporting are all much more cost effective than sitting in jail waiting for trial.

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Court orders detention hearing for juvenile facing murder charge

The Pennsylvania Superior Court has ordered  Lawrence County Judge John Hodge to hold a detention hearing for Jordan Brown.  He has been detained for more than three years on charges that he fatally shot his father's pregnant fiancee.

Brown, now 14, has been held in the Edmund L. Thomas Adolescent Detention Center in Erie since February 2009, when he was charged with the killings of Kenzie Houk whose pregnancy was nearly at its full-term. Brown was 11-years-old at the time of the killing, according to the Pittsburgh Post-Gazette.

In October, Hodge denied a motion by Jordan's defense attorneys to hold a detention hearing for him, saying he lacked jurisdiction because the Superior Court panel had yet to hear an appeal on a different aspect of the case.

Under the Pennsylvania Juvenile Act, a juvenile must be released or adjudicated within 10 days of being charged. Brown was originally charged as an adult.  He faced life in prison without the possibility of parole if convicted in adult court.

Last year, Judge Dominick Motto decided his case should be handled in juvenile court after the Superior Court sent  the case back to him after setting aside Motto's decision that the case should remain in adult court, reported the Post-Gazette.

A three-judge panel of the Superior Court expressed concern that no detention hearing had been held. The order issued last week directs Hodge to hold the detention hearing by April 5.

To read more: http://old.post-gazette.com/pg/12090/1220574-54.stm#ixzz1qvtszc6X

Justice, Liberty and Privacy 10 Years After 9/11

A few days after the attack on the World Trade Center U.S. Supreme Court Justice Sandra Day O"Connor visited Ground Zero, reported Law.com. Later she told and audience at NYU, "I am still tearful from that glimpse." O'Connor went on to predict that "the trauma that our nation suffered will and already has altered our way of life, and it will cause us to re-examine some of our laws pertaining to criminal surveillance, wiretapping, immigration, and so on.…As a result, we are likely to experience more restrictions on our personal freedom than has ever been the case in our country."

Justice O'Conner was right-on in her assessment of the impact 9/11 would have on the American Justice system.  Law.com details a number of issues that have raised concern:

• Torture and rendition of terror suspects, employed by the Bush administration, have been ostensibly stopped by the Obama administration. But Obama has endorsed the concept of indefinite detentions in some cases and the administration has argued for immunity from prosecution for officials involved in abuses.

• The Patriot Act, passed by Congress in the heat of post-September 11 passions, has been tempered in reauthorizations to include new safeguards of civil liberties.

• Guantánamo detainees won due process rights from the Supreme Court. But Guantánamo is still open, despite Obama campaign promises, and hundreds of other prisoners are detained at Bagram Airfield in Afghanistan, where a federal appeals court ruled that habeas relief in U.S. courts is not available. And Obama has backed away from earlier plans to replace military commissions with trials in civilian courts.

• The state secrets privilege, invoked by the government to shield purported national security matters from litigation, has thrived under Obama, and the Supreme Court has sidestepped cases challenging its overuse.

• The so-called "expectation of privacy," a key measure for judging the constitutionality of government intrusions, has weakened, if not vanished — the result not only of Sept. 11 but technological advances. Storing documents "in the cloud" instead of on hard drives, for example, will make it easier for law enforcement to obtain them without search warrants.

To read more:  http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202513396892&slreturn=1&hbxlogin=1

ABA Proposes Pre-Trial Detention Reform

The American Bar Association (ABA) is proposing pre-trial detention reform that could save state and local municipalities millions of dollars. The ABA web site provides an overview of the problem and a model program in Kentucky dealing with coslty pre-trial detention.

Pre-trial release reform is part of a criminal justice reform effort by the ABA aimed at changing laws and practices on not only pre-trial release but also decriminalization of minor offenses, prisoner re-entry, increased use of parole and probation, and community corrections in 10 states. The program will operate in California, Delaware, Florida, Georgia, Illinois, Louisiana, Massachusetts, New Jersey, New York, and Vermont.

In addressing pre-trial release the ABA writes, according to the United States Department of Justice, over 500,000 men and women sit in jail awaiting trial. Two-thirds of these people are low bail risk, meaning they have been deemed by a magistrate to pose no significant risk to themselves or the community, as well as representing a low risk of flight. Often, these inmates will sit in jail for over a year before standing trial. While these non-violent offenders are in jail, taxpayers provide them with food, clothing, healthcare, and security – last year alone the United States spent $9 billion on services for those who could not afford bail.

With the development of better tools, methods, and technologies to supervise non-violent offenders, states will be able to save money on pretrial detention and reduce risk to the community. Those who pose the lowest risk can be identified, released before trial, and then appropriately monitored and supported so they do not become a risk. Under these narrow circumstances, not only do taxpayers save money, but the community is not put in danger.

Although community safety and risk of flight are key components of a pre-trial detention determination, two thirds of the 500,000 individuals sitting in jail before trial are low bail risk – identified as posing no significant risk to themselves or the community with a likelihood of reappearance at subsequent court dates. Proper identification and release of low risk individuals to supervision programs or on their own recognizance will decrease the costs associated with operating detention facilities and housing detainees and reduce the collateral consequences of confinement such as job loss,inability to pay child support, eviction and potential immigration consequences.

Kentucky's model program provides for state pre-trial diversion officers who are trained to be neutral in all decisions regarding treatment. The state’s program has 256 employees and provides investigation and supervision services in all 120 counties in the state. Diversion provides selected individuals with non-punitive case processing if they satisfy certain conditions of release. The program is designed to help an individual before he or she develops long-term destructive behavior and is entirely voluntary, although the district judge and county attorney must approve all participants. If a participant successfully completes the program, the charges are dismissed with prejudice, and the individual avoids the stigma of a criminal record.

To read more: http://www2.americanbar.org/sections/criminaljustice/CR203800/Pages/statepolicyproject.aspx