Wisconsin case tests speedy trial rule after man sits in jail for 14 months without an attorney

If the state can’t find defense attorneys for criminal defendants for months on end, the charges should be dismissed due to the violation of their constitutional rights, a national defense lawyers group argues, reported WTAQ-WLUK. .

The issue stems from the case of James Grandberry, a suspect in a major Chicago-to-Green Bay drug ring investigation. He sat in jail for more than 14 months without an attorney or a preliminary hearing, which is usually held within 10 days.

Grandberry, 36, faces 14 charges, including three of manufacture or delivery of fentanyl, amphetamine and cocaine. He was arrested July 11, 2024, and charged about two weeks later. Prosecutors have said this case was the state’s first wiretap investigation for fentanyl and at least 47 people are facing charges. Grandberry now has an attorney and has pleaded not guilty. No trial date has been set. He returns to court June 22 for a status conference.

Before an attorney was appointed, however, Grandberry’s preliminary hearing was postponed 10 times.

Grandberry’s motion to have his case dismissed was denied by a judge. Grandberry then filed what’s known as an “interlocutory appeal” asking a higher court for the case to dismissed, arguing his Sixth Amendment rights were violated by the delay. Usually, the appeals court take up issues of law after a case has been completed, but this mechanism allows for an appeal while the case is still pending. In August, the Court of Appeals said it would hear the case. This appeal case continues, even though an attorney was eventually found for Grandberry and his case is now underway.

Attorneys for both Grandberry and prosecutors have filed arguments with the court. Other groups have asked to file what are known as “friend of the court” briefs, offering their opinions on the case. The first one was filed Thursday.

The National Association of Criminal Defense Lawyers argues the remedy should be dismissing the charges outright, without giving the state the ability to refile the charges. Refiling of charges was allowed in another case, where Nhia Lee was jailed 113 days with a preliminary hearing.

“Only dismissal with prejudice accomplishes something useful. It tells all that egregious violations of due process beget serious consequences,” wrote attorney George Burnett.

And while it isn’t the prosecutors’ fault Grandberry didn’t get an attorney, it is the state of Wisconsin’s issue, the NACDL brief argues.

The crisis the Supreme Court described therefore emanates from the State’s policy decision, so the consequences of that decision should fall on the State, not those it accuses. Funding lawyers to represent those accused of crimes is neither politically urgent nor electorally popular for now, prisoners like James Grandberry bear, through no fault of their own, the full ramifications of the State’s unwillingness to meet its constitutional obligations. That must change.”

The Wisconsin Association of Criminal Defense Lawyers and the State Public Defender’s Office also plan to file briefs, court records show. It will likely be several months before the Court of Appeals rules in the case.

Grandberry’s case isn’t the only one to challenge the delays in appointing attorneys. In 2022, eight current and former inmates filed suit in Brown County, seeking an order demanding quicker appointment of counsel. The state public defender’s office has also spent more than a year making over 5,000 contacts, trying to find an attorney for Jordan Leavy-Carter, who is charged in connection with the shooting death of a five-year-old.

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Bail reform fails in Baltimore--people in jail awaiting trial increases

Seven years after Maryland tried to reform the cash bail system because of its disproportionate impact on the state’s poorest residents, people who get arrested in Baltimore are being held in jail before trial at a higher rate than before the change, reported the Baltimore Beat.

While the use of cash bail has dropped since the bail reform effort, nearly two-thirds of all initial appearances in Baltimore — the first hearing an arrested person has before a court official — now end in a bail denial, a rate that has surged by about 300% since the state judiciary changed the rules surrounding pretrial release in 2017.

The population at Baltimore’s main pretrial detention center has actually risen since 2017, even as arrests have declined during the same period. People who are held in jail before trial can wait months or longer before their case concludes, even though they are presumed innocent and criminal cases in Baltimore often end without a conviction.

The biggest shift since the rule change has come from court officers denying bail entirely, according to data provided by the state judiciary and analyzed by Baltimore Beat and The Garrison Project.

The data shows: 

·         Since the bail reform rule change in 2017, the use of cash bail at initial appearances has fallen dramatically in Baltimore, from about 40% before the 2017 effort to under 5% in the first half of 2023, the most recent data provided by the state judiciary.

·         Baltimore’s overall release rate — the proportion of people freed on unsecured bond or on their own recognizance at their initial appearances — rose at first after bail reform, but then fell back below pre-reform levels.

·         In 2016, court officers in Baltimore held people without bail at their initial appearances less than 15% of the time, but bail denials quickly spiked after the rule change and have hovered around 60% since 2020.

These are not brief stints in jail. More than 60% of defendants who have an initial appearance are still in custody five days later.

The 2017 bail reform effort was designed to reduce the crushing, unequal costs of cash bail and stop judges from holding people in jail pretrial simply because they could not afford to pay — a practice that was likely unconstitutional, the Maryland Attorney General’s Office said in 2016.

Yet the population at Baltimore’s main pretrial detention center has risen from under 700 people per day on average in 2017 to more than 900 in 2023. The facility’s health care system is under intense scrutiny, and at least four people have died in pretrial custody this year, including a man who was held on $3,500 cash bail after being accused of stealing snacks from a vending machine.

Christopher Dews, a lobbyist who represents Out for Justice, a nonprofit that supports formerly incarcerated people, said the difference after the 2017 rule change was clear when he worked on the Job Opportunity Task Force’s bail fund in Baltimore. The number of people eligible to be bailed out of jail dwindled and then reached zero, he said.

The result has frustrated reform advocates who considered the rule change a victory but have since watched it backfire.

“It is quite painful, the reality that whenever we have a massive policy win for equitable criminal justice reforms, it does seem as if the state finds non-legislative, non-policy ways to thwart those successes,” Dews said. “As advocates, we prepare to defend our wins, but you can only defend wins so much from the state that has to implement those same wins.”

The pretrial system became more black-and-white after the rule change, added Nicole Belle, who was a case manager for the Job Opportunity Task Force’s bail fund from 2021 until early 2023. People facing charges were either released or held without bail.

“There was no in between,” Belle said.  

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Texas continues to use a cash bail system-penalizing poor people

Like most states, Texas uses a cash bail system that lets defendants pay to get released from jail while they wait for ​​adjudication. But the price of bail is often an insurmountable hurdle, reported the Texas Tribune.

Civil rights groups and inmates have unsuccessfully challenged Texas’ use of a cash bail system for years. Lawsuits targeting Dallas and Harris county jails alleged the practice was unconstitutional because it discriminates against poorer defendants. A federal appeals court ruled against the Dallas plaintiffs and the Supreme Court declined to take the case. 

In 2021, Texas lawmakers changed the state’s bail system, but didn’t forbid a cash bail system. Instead, they required all defendants accused of violent crimes to pay cash for release from jail before their trials. Critics said requiring cash to get out of jail would continue to penalize low-income people and benefit the bail bonds industry.

About three in every four Texans in county jails are awaiting the resolution of their cases, according to data from the Texas Commission on Jail Standards, the state agency that oversees local jails. That number has surpassed pre-pandemic levels and is 14% higher than in January 2017.

For women, the wait can be harder than for men. County jails, meant for short stays, commonly lack resources women need — like pregnancy care and mental health treatment. Women in county jails are also more likely to have mental health needs. And many are mothers separated from their children.

Angel Collier worked at Buc-ee’s, but in 2014 became a stay-at-home mom for several years before breaking up with her child’s father. At the time of her 2020 arrest, Collier was living with her father while she was a full-time student pursuing an online psychology degree from Houston Christian University.

Following her arrest, Collier’s combined bond for the two misdemeanor charges was set at $8,000. When she couldn’t afford that, a friend loaned her over $700 to pay a bonds company so she could get out of jail. But two years later, while still awaiting her trial, she missed a required court hearing because she was receiving emergency care for pregnancy complications. A warrant was issued for her arrest in Walker County.

In June 2022, officers from Madison County were sent to her home in Midway for a welfare check because someone reported she was having a miscarriage. When Collier came outside, she told police she was OK, but that she may go to the doctor the next day, according to video obtained by KFF Health News. Because of the Walker County warrants, police arrested her.

Collier said she could not afford to pay thousands of dollars to bail out. Stuck in Walker County jail again, she says she experienced a miscarriage and received little medical attention while she waited a day for another friend to loan her money to pay a bonds company for her release.

Collier later filed a formal complaint with The Texas Commission on Jail Standards about her miscarriage. In a September 2022 letter, the agency told Collier that Walker County Jail had not violated minimum jail standards. According to the commission, records from Walker County Jail show that Collier only submitted one medical request and did not advise jail staff of any other medical issues. Collier claims she asked for help multiple times.

“We haven’t yet gone far enough to meet the needs of women who are in jail at the county level,” said Alycia Welch, associate director of the Prison and Jail Innovation Lab at The University of Texas at Austin, a research center dedicated to incarceration in Texas.

Texas law requires the Texas Commission on Jail Standards to collect and report data on incarcerated women. But the Commission cannot provide the total number of women behind bars and waiting for their cases to be resolved in Texas county jails right now — or any time in the last two years.

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New Jersey bail reform measure dramatically reduced minor offenders awaiting trial

 In 2014, New Jersey voters backed a constitutional amendment to allow judges to order certain criminal suspects be detained without bail and pushed the courts away from holding minor offenders awaiting trial, according to the New Jersey Monitor.

Since that measure went into effect in 2017, the number of individuals imprisoned on bail of $2,500 or less while awaiting trial fell to just 14 last year, the New Jersey Judiciary announced. A study conducted in 2012 put the number at more than 1,500, fully 12% of the state’s prison population.

“Based on what the hands-on experience is with the courts system, it’s proven out that we got it right,” said Assemblyman John Burzichelli (D-Gloucester), a prime sponsor of the amendment’s enabling legislation, which allowed the courts to set non-monetary release conditions.

The number of pretrial inmates held on bail of $2,500 or less has declined each year since the new rules went into effect. Replicated studies found such individuals accounted for 4.6% of New Jersey’s prison population in 2018, and 2.4% in 2019.

“If the point of it was to ensure that some of the tenets of American society — that you’re innocent until proven guilty and those people that are low societal risks are allowed to be out of jail — then it’s worked,” said Sen. Nicholas Scutari (D-Union), chair of the senate’s judiciary committee and another prime sponsor. “The data bears out that it’s working.”

The declines persisted even as widespread trial delays spurred by the pandemic pushed the number of incarcerated persons up slightly.

Scutari also credited the reforms with saving counties money that would have been used on corrections. Union County this summer transferred inmates held at its county jail in Elizabeth to the Essex County Correctional Facility. County officials expect the arrangement to save Union $103 million over the next five years.

Officials in Hudson County approved a similar agreement to share substance abuse treatment and re-entry services with Union. The Union County facility is still being used as an intake hub and for temporary detentions.

The reforms initially caused some consternation among judges, who voiced concerns over the impact of stricter trial deadlines, but — save for the delays caused by COVID-19 — those do not appear to have borne out.

“I remember the judges were going crazy. ‘It’s going to be crazy. It’s too much work,’” Scutari said. “But now they’ve gotten it done, just like I expected. We have an excellent judiciary. They got it done. They understand it now. It’s working, just as intended. Low-risk individuals are being allowed to await trial with their freedom, and we’re not jeopardizing people’s safety by putting high-risk people out there.”

The policy shift has not led to a rise in indictable offenses committed by individuals on pretrial release, the report says. That number has held steady at about 13.8% since 2017, and court appearance rates for such persons increased to 90.9% last year, from just under 90% in 2019.

The share of individuals incarcerated for serious offenses increased again, rising to 79.7%. It was 75.9% in 2019 and 74.9% in 2018.

“Too many people have ended up in jail not because they committed a serious crime, but because they can’t afford bail. That unfair system, which reigned in New Jersey for a century, unfairly punished the poor and working class,” Rep. Donald Norcross (D-01), who sponsored the bill as a state senator, said in a statement. “We have more to do to improve equity and abolish discrimination in our criminal justice system – but the annual criminal justice reform report shows we are on the right path.”

To read more CLICK HERE

New NY governor takes on Rikers Island and parole violations

Gov. Kathy Hochul ordered the release of nearly 200 detainees from New York City’s Rikers Island jail complex, underscoring the growing alarm about violence and unbridled disorder at the notorious facility, reported the New York Times.

Ms. Hochul’s move came amid increasing calls for federal or state intervention at the city-run jail, which officials and detainees say has plunged into chaos — Ms. Hochul described it as a “pressure cooker” — and is rife with health and safety risks for inmates and employees alike. Ten detainees have died there since December, including several from suicide.

But the plan will not significantly reduce overcrowding, and it may do little to address two continuing crises at Rikers, one rooted in an acute staff shortage at the complex, the other in an increase in coronavirus cases there in recent weeks.

In addition to the release of the 191 detainees she announced Friday, Ms. Hochul also said she would transfer 200 others to state prisons in the coming days. Even with those moves, Rikers will be far more crowded than it was in spring 2020, when a wave of releases during the pandemic lowered the population below 4,000. On Friday, more than 6,000 people, the vast majority of them awaiting trial, were being held there.

Hochul that seeks to reduce jail populations by ending the practice of incarcerating people who commit certain technical parole violations.

But the law does not tackle what a court-appointed federal monitor has described as the widespread absenteeism among correction officers that has contributed to a deterioration of security and health conditions at the complex. With hundreds or thousands of guards not showing up to work daily, officials and detainees alike say that basic jail functions have ground to a halt: Gangs patrol hallways, detainees are held in showers repurposed as stalls and some incarcerated people are going without water, food or medical care for days.

On Friday, some local officials suggested that the federal authorities might seek to wrest control of the crisis from the city. Eric Gonzalez, the Brooklyn district attorney, urged the monitor to ask a federal judge to order authorities to increase staffing levels. The monitor was appointed in 2015 under a settlement between the city and the Justice Department that was meant to resolve a class-action civil rights lawsuit that detailed abuses at Rikers.

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Jail populations are on the rise, some back to pre-pandemic levels

Gordon Weekes, the chief public defender in Broward County, Florida, believed that March 2020 could have compelled the start of something different for the criminal legal system. The COVID-19 pandemic had just hit the U.S. Officials all over the nation needed to decide whether they would risk letting thousands of people contract a potentially fatal disease simply because they were incarcerated in overcrowded and unsanitary jails and prisons, reported The Appeal.

At first, he was hopeful. Local cops, prosecutors, and judges worked with defense attorneys to lower the jail population of Broward County, a region of nearly 2 million people that includes the cities of Fort Lauderdale and Hollywood. By last April, the jail population was less than 3,000 people for the first time in decades. But now, nearly one year later, COVID-19 is spreading at a higher rate, and the county jail population has instead risen once again. Weekes confirmed to The Appeal that, as of mid-January, nearly 3,500 people were being held.

“I was hoping that the pandemic would give people some real-life data to show the justice system, and the ways we’ve been doing things in the past, was inherently flawed,” Weekes told The Appeal. But, he added, “it seems like no one has learned anything from the last year when we’ve been addressing this issue. That is the great frustration you have with the system.”

That frustration is shared in cities around the nation. According to numerous news reports, as well as data obtained by The Appeal, the number of people held pretrial in many of America’s major cities rose during the latter half of 2020. In some cities, jail populations have now risen back to their pre-pandemic populations.

According to a review by The Appeal, jail populations in New York City, Chicago, Houston, Philadelphia, Dallas, Miami, Broward County, Orlando, and Tampa declined briefly in early 2020 and have since returned to pre-pandemic levels. Other major cities that released some incarcerated people in early 2020, including Los Angeles, San Diego, Columbus, Ohio, San Francisco, Washington, D.C., Seattle, Boston, Indianapolis, Oakland, Denver, and Austin, Texas, have seen their jail populations swell over the latter half of 2020, but they remain somewhat lower than their pre-pandemic levels.

As of Tuesday, more than 452,000 incarcerated people and prison staff nationwide have been infected by the coronavirus, and nearly 2,400 have died.

“I thought everyone would take this as a lesson learned, but it seems old habits are hard to break,” Weekes said.

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ACLU files emergency request to release some inmates from county jails

The ACLU of Pennsylvania on behalf of the Pennsylvania Prison Society filed an emergency request asking the state Supreme Court to use its “King’s Bench” power to protect public health by ordering county common pleas courts to release some people from county jails, including those who are at high risk of serious illness or death if infected by COVID-19 and those who are held pretrial or on short sentences for minor offenses.

The petition argues that drastically reducing jail populations to allow jails the space to follow CDC-recommended safe social distancing and hygiene practices is the only way to prevent widespread contagion, which will inevitably infect people who are incarcerated, jail staff, and the surrounding communities. 

The emergency request asks the Supreme Court to order every Court of Common Pleas president judge to limit new jail admissions to the most serious offenses and order the presumptive release of everyone already held on cash bail or for technical and minor-offense probation violations; in a work release program; who are medically vulnerable because they are older or have certain serious health conditions; or who are within three months of completing their minimum sentence. 

The petition was filed on behalf of the Pennsylvania Prison Society and five people detained in jails around the commonwealth. It is joined by the Public Defender Association.

To read the Petition CLICK HERE

ACLU files emergency petition with PA Supreme Court to release county jail inmates

The American Civil Liberties Union (ACLU) of Pennsylvania filed an emergency petition to the Pennsylvania Supreme Court seeking the release of some in the Commonwealth’s county jails, reported Jurist. The petition argues it is a necessary measure to allow jail space to follow CDC-recommended safe social distancing practices to prepare for COVID-19.
The petition asks the Supreme Court to use its “Kings Bench” power to relieve some of the jails’ most vulnerable populations, as well as those awaiting trial or on short sentences for minor offenses.

“Leading public health officials have warned that unless courts act now, the ‘epicenter of the pandemic will be jails and prisons,'” the petition states. “The U.S. Centers for Disease Control and Prevention (“CDC”) has explained that correctional and detention facilities ‘present unique challenges for control of COVID-19 transmission among incarcerated persons, detention center staff, and visitors.’”

Other states have implemented similar measures, outlined in the ACLU’s petition, including New Jersey, which was the first March 23, and South Carolina, where its Supreme Court ordered that everyone held in jail on bond in a non-capital case be released, unless there exists an “unreasonable danger” or “extreme flight risk.” US Attorney General William Barr directed the Bureau of Prisons (BOP) to use home confinement for inmates currently held in jail or prison when appropriate in response to an increase of COVID-19 cases among prison populations on Thursday last week.

“We urge this Court, in the strongest terms, to join the growing chorus of courts who have decided to act in an effort to save lives. The time to act is now,” the petition said.

To read more CLICK HERE

About 11 million people funnel through local jails each year

One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. Jails are ostensibly locally controlled, but the people held there are generally accused of violating state law, and all too often state policymakers (and state reform advocates) ignore jails, says a report from the Prison Policy Initiative. In terms of raw numbers state prison reform is the larger prize, but embracing the myth that jails are only a local matter undermines current and future state-level reforms. Jails may be locally controlled, but jail practices reflect state priorities and change state-wide outcomes.

The 11 million people who go to jail each year are there generally for brief, but life-altering, periods of time. Most are released in days or hours after their arrest, but others are held for months or more, often because they are too poor to make bail. Only about a third of the 720,000 people in jails on a given day have been convicted and are serving short sentences, typically under a year and most often for misdemeanors. Jail policy is therefore in large part about how people — who are legally innocent, until proven guilty — are treated and about how policymakers think our criminal justice system should respond to low-level offenses. As this report will explain, jails impact our entire criminal justice system and millions of lives every year.

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Supervised bail program flourishes in Pennsylvania county

In response to increased usage of Bradford County, Pennsylvania's supervised bail program, the program is being expanded, which will almost double the number of individuals who can enroll in the program, reported The Daily Review.
The program was launched in September 2013 to reduce the overcrowding at the Bradford County jail.
The Bradford County commissioners voted to create a third, full-time bail release officer position for the supervised bail program, which is a program aimed at increasing the number of defendants who are out on bail.
The additional officer will increase the number of defendants and others who can be enrolled in the program to approximately 75, Bradford County jail Warden Donald Stewart said.
Until now, the capacity of the program has stood at about 40 individuals, Stewart has said.
At Thursday's meeting of the Bradford County Prison Board, Stewart said that there were 53 defendants and others currently enrolled in the supervised bail program.
The number of individuals enrolled in the program had reached an all-time high of 57 at some point within the previous two weeks, he said.
Enrollment in the program was allowed to increase beyond the 40-person capacity because the two bail release officers felt they could handle the additional individuals, the warden said.
In an interview, Stewart said that enrollment in the supervised bail program has been growing because, over time, the county's four magisterial district judges have been using the program more, and because Bradford County Court Judge Maureen Beirne also began using the program not long after it was launched.
The supervised bail program "is a very successful program" which has saved the county money, Bradford County Commissioner Daryl Miller said.
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New York to adopt risk based pretrial release

The New York Supreme Court Joint Committee on Criminal Justice, which includes judges, defense lawyers and prosecutors, has recommended that the Legislature adopt pretrial release legislation that would release those charged based on the risk they pose, rather than merely their ability to pay., reported the New York Times. 

The state Constitution requires that bail be set for all defendants charged with crimes that are not capital offenses. Recommending the changes, Chief Justice Stuart Rabner said that this presented problems “at both ends of the system”: people who pose little risk to public safety are held in jail because they cannot afford to pay even minimal bail, while even the most violent and dangerous defendants must be released if they make bail.

A recent study cited in the report from the committee found that 12 percent of people held in New Jersey’s county jails were there because they could not post bail of $2,500 or less. More than two-thirds of those 12 percent were minorities. Studies have shown that people who are held while awaiting trial are more likely to plead guilty, be convicted, and receive harsher prison sentences than defendants who are released pending trial.

The bail provisions recommended in the report would require a constitutional amendment to allow judges to order defendants held pending trial. And the committee also said that the changes should not be enacted unless the Legislature also establishes a system to monitor defendants who are released on conditions other than bail.

“Releasing defendants without monitoring is not an option,” Chief Justice Rabner said in a conference call with reporters. He also called for more funding to ensure that there are enough judges, prosecutors and public defenders to meet the faster deadlines for trial.

Under the recommendations, all defendants would be evaluated for pretrial release based on the same criteria for risk, considering factors like the nature of the charge, history of prior arrest, flight risk, employment status and drug use.

Ultimately, the committee said that the changes could reduce costs. Each day, an average of 9,000 people are held in pretrial detention in New Jersey, at a cost of about $100 a day. The committee’s report projected that the proposed changes would reduce the number of people held by at least half.

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Pretrial detention costs $9 billion a year

Pretrial detainees account for more than 60 percent of the inmate population in our jails. The cost to incarcerate defendants pretrial has been estimated at over $9 billion per year.

 

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. There is, of course, a small but important group of defendants who should most often be detained because they pose significant risks of committing acts of violence, committing additional crimes, or skipping court.

 

According to The Crime Report, extended pretrial detention correlates longer sentences, increased criminal activity after cases are over, and a decreased likelihood that defendants will return to court, according to a series of studies released recently by the non-profit Laura and John Arnold Foundation.

 

One study of court data found that defendants held for the entire pretrial period were four times more likely to be sentenced to jail and three times more likely to be sentenced to prison; the jail sentences were three times longer and the prison sentences twice as long.

 

Another study — of 153,000 defendants in Kentucky — found a correlation between the length of pre-trial detention and the likelihood that defendants would re-offend.

 

The third study found that defendants who were released under pretrial supervision “were significantly more likely to appear for their day in court than those who were unsupervised.”

 

To read full Report

 

GateHouse: Pretrial detention costs taxpayers billions

Matthew T. Mangino
GateHouse News Service
April 26, 2013

 Fifty years ago the U.S. Supreme Court made it clear that having a lawyer in a criminal case was a necessity, not a luxury. When that “necessity” is imposed continues to be the subject of debate.

Every day in this country thousands of men and women accused of a crime go before the court without the assistance of counsel. The initial bail hearing, probably the most crucial liberty proceeding in a criminal case, is often conducted without legal counsel.

Last year, Jake Schaller a law student at the University of Maryland wrote in the Baltimore Sun, “I didn't need to go to law school to learn that a person charged with a crime is innocent until proven guilty and entitled to the assistance of a lawyer. …Heck, it's America 101.”

The major obstacle to full and complete representation is money. State and local lawmakers don’t want to expand funding for indigent defense.

However, the failure to afford legal counsel for the initial bail hearing is not only fundamentally unfair; it also imposes an enormous, and needless, burden on taxpayers.

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.

In most states, everyone charged with a crime other than first-degree murder is entitled to bail. The criteria considered by courts include 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.

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 bail that is beyond the defendant’s ability to post. Bail 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.

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.

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.

These inmates can sit in jail for a year, or longer, before going to trial or pleading guilty.

While these people are in jail, taxpayers provide them with food, clothing, healthcare, and security. According to the American Bar Association the United States spends about $9 billion a year on pretrial detention.

Judge Truman Morrison, a Senior Judge with the Superior Court of the District of Columbia, told The Crime Report the system is unscientific and that most judges "guess" in setting bail figures. "It's utterly random," he said.

About two-thirds of the nation's counties lack organized pretrial programs. The lack of services makes it virtually impossible for counties to determine who is low risk and eligible for release pending trial. Comprehensive pretrial services not only save money, but also promote justice and fairness.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

The Column

West Virginia's 'Savings' from Pretrial Diversion Dubious

The problem with pretrial diversion programs is that projecting savings based on jail cost per inmate per day are flawed

Last month, backed by a study from the Justice Center of the Council of State Governments that found that about 43 percent of inmates in West Virginia's regional jail system are awaiting trial, Gov. Earl Ray Tomblin announced a reinvestment initiative that called for lawmakers to shift $25 million into probation and day report systems in hopes of saving nearly five times that amount in prison and jail spending, reported The Charleston Gazette.

Part of recommendations included broader use of pretrial risk assessment programs, according to the Justice Center report. The study, however, made no mention of the pilot programs already in existence.

The problem with pretrial diversion programs is that projecting savings based on jail cost per inmate per day are flawed.  A correction facility that pays on average $50 per day per inmate will not realize any saving when one, two or even ten less inmates are incarcerated on a given day. 

There are fixed costs at correctional facilities.  The only way to realize savings would be to reduce personnel or 'moth ball' a portion of the facility.  This can happen only over time with a broad change in pretrial philosophy. An occasional reduction of a handful of inmates will not result in any meaningful reduction is costs.

The Gazette in conjunction with the John Jay College of Criminal Justice in New York looked into exist pretrial diversion programs in West Virginia.

The state Division of Justice and Community Services funded a pilot pretrial program with a $300,000 grant, dispersing it evenly between Mercer, Wayne, Brooke, Greenbrier and Wood counties.

But while officials close to the pilots have lauded them as a success, little data exists to suggest that there has been a measurable impact on regional jail spending. In fact, since 2011, regional jail bills have risen in every pilot county except for one.

Pretrial officers have also shunned other statistics--like instances when released inmates fail to show up for court--that experts say generally serve as a standard in measuring the success of pretrial release programs.

On average, about 10 defendants a week are released through Cabell County's program--saving about $8,500 a day. That works out to more than $400,000 a year.

The problem is that the jail costs are still on the rise, reported the Gazette.

Near the end of 2012, Cabell County's monthly jail bill stood at about $330,000, up about $100,000 from when the program started in December 2009.

Even the Council of State Governments Justice Center who are helping implement West Virginia's Justice Reinvestment Initiative find the cost savings of pretrial diversion dubious.

Justice Center analyst Mark Pelka said that most of his group's recommendations to the governor focused on expanding risk assessment programs for post conviction felons so judges can make better decisions at sentencing.

"We don't have very much on pretrial in the justice reinvestment policy framework," Justice Center policy analyst Mark Pelka told the Gazette.

Pelka said the Justice Center will be advising lawmakers about pretrial release in the upcoming legislative session. Most of the focus, however, will be on lightening the burden in the state prison system, he said.

To read more: http://wvgazette.com/News/201302160042

A Fundamental Liberty Right Denied

The Pennsylvania Law Weekly
February 12, 2013

This year marks the 50th anniversary of the landmark U.S. Supreme Court decision Gideon v. Wainwright, 372 U.S. 335 (1962). In Gideon, the high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.

The decision was premised on the Sixth Amendment, wherein the framers of the U.S. Constitution provided, "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense."

Thirty years earlier, the U.S. Supreme Court decided, in Powell v. Alabama, 287 U.S. 45 (1932), that the Constitution required defendants facing the death penalty be provided access to counsel upon request.

Justice George Sutherland wrote in Powell, "Even the intelligent and educated layman has small and sometimes no skill in the science of law."

When the Gideon decision came down, it was not entirely a surprise. At the time Gideon was argued, the federal government already recognized that the Sixth Amendment required the appointment of counsel for indigent defendants facing felony charges.

In addition, 37 states provided for the appointment of counsel by statute, administrative rule or court decision. Eight states provided counsel as a matter of practice. In an unprecedented act of support for the rights of those accused of a crime, 22 state attorneys general joined Gideon in urging the court to establish an absolute constitutional right to counsel in criminal cases.

Only five states — Florida, Alabama, Mississippi, North Carolina and South Carolina — did not provide counsel for indigent defendants.

Fifty years after Gideon, the focus has evolved from merely the right to counsel to the right to effective representation. That representation has turned from ensuring a fair trial to ensuring effective assistance on matters such as plea bargaining and the collateral consequences of sentencing.

Missing from today's debate is extending the right to counsel to an accused during his or her first encounter with the courts.

Contrary to the belief that all indigent defendants are constitutionally entitled to a lawyer when their liberty is at stake, only 10 states guarantee representation at an initial court appearance to assess bail — a proceeding with fundamental liberty implications. In comparison, an equal number of states refuse to provide counsel at initial bail proceedings uniformly throughout the state, while the remaining 30 states, including Pennsylvania, assign appointed counsel in only some counties.

Most of Pennsylvania's indigent defendants are unrepresented by counsel at preliminary arraignments, the initial appearance before a judicial officer; only Philadelphia public defenders guarantee representation at the preliminary arraignment, according to Douglas L. Colbert in Prosecution Without Representation.

When counsel appears on behalf of an accused at the initial court proceeding to determine bail and offers an effective argument, the chance of a judicial officer ordering pretrial release or an affordable bail increases significantly, according to Colbert.

Colbert wrote, "A lawyer's informed and compelling advocacy often makes the difference, particularly when the charge against the accused involves no violence or injury to another."

Not only are liberty interests at stake, but in lean economic times, state and local governments can open the door to big savings by paying closer attention to bail issues.

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. Policymakers must be ever mindful that those individuals have been arrested and accused of a crime — not convicted — and 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 made bond.

In most states, including 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.

The primary purpose of bail is to ensure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative. Although pretrial detention is not considered punishment, defendants are given credit for the time served in detention.

Some counties will argue that providing a defendant counsel at the preliminary arraignment is too costly. Every state in the country provides at least some funding for indigent defense — every state except Pennsylvania.

Pennsylvania's Public Defender Act of 1968 provides for the establishment of a public defender in each county in Pennsylvania. It has remained an unfunded mandate for 45 years.

The public defender is appointed by the Board of County Commissioners and is funded exclusively with local funds. In fiscal year 2008, the total indigent defense expenditure statewide was approximately $95.5 million.

County commissioners could easily point the finger at the state's failure to fund any part of indigent defense and simply refuse to provide funding for initial bail hearings. Not only is finger-pointing unproductive, it blinds local policymakers to an emerging opportunity.

According to a 2011 study by the Justice Policy Institute, a close examination of initial bail hearings demonstrates that providing representation at the earliest stage of a case can actually save money.

For instance, a low-risk defendant charged with a nonviolent offense appears without counsel at his preliminary arraignment. The court sets a $2,500 bond. The defendant is indigent and cannot post the bond. His preliminary hearing is scheduled 10 days out and is continued once for a week. At the preliminary hearing, the defendant's county-funded public defender immediately requests an ROR bond, which is granted.

The defendant sat in jail for 17 days at a conservative $65 a day. The lack of early counsel costs taxpayers about $1,105. With nearly four out of five defendants eligible for court-appointed counsel, preventing that scenario from repeating itself 100 or 200 times during the course of a year could save a county close to $250,000.

It would be disingenuous not to acknowledge that there are fixed costs in operating a jail or prison and that the initial savings may not be as simple as suggested. However, this issue is about more than finances.

Early representation is about liberty and, as Colbert put it, "Timely legal representation reinforces the long cherished principle of equal justice and presumption of innocence."

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California considers pretrial diversion as cost saver

Pretrial programs in San Francisco, Santa Clara and Santa Cruz allow nonviolent defendants who cannot afford bail to continue living at home, to work and to care for their children while they await trial, reported the San Fransisco Chronicle.

As county jails around California swell with inmates, some are pushing counties and the state to adopt similar programs that would let qualified detainees out of jail without having to post bail.

Advocates, including the American Civil Liberties Union and some Democratic lawmakers, say the programs promote both public safety and justice by using scientific evaluations to help judges decide whether it is safe to release a defendant before they go to trial. The current bail system, they say, favors wealth and strands low-income people behind bars because they cannot afford bail amounts. They also argue that a defendant who gets out of jail is less likely to accept a plea deal and has a better chance of an acquittal or a shorter sentence if they go to trial.

According to the Chronicle, Opponents, including the bail bond industry and some law enforcement and victims rights groups, say defendants pose a lesser flight risk when they have to put up money for a bail bond and that pretrial programs pose a risk to public safety, because they do not focus on the crime a person is charged with.

Under the programs, nonviolent defendants who qualify for pretrial release are either freed on their own recognizance - that is, only a promise to appear, though often there are restrictions on their behavior - or placed on supervised release, which can range from mandated group therapy to probation-like check-ins or electronic monitoring.

In San Francisco, for example, someone placed on supervised release may have to go to an anger management group once a week until the case is adjudicated and will have a case manager checking in to make sure that person appears in court.

Supporters say these programs are crucial, especially since 62 percent of county jail beds in California are filled with pretrial detainees, according to state records available online. In 32 counties, jails are filled to capacity, and some sheriffs are releasing convicted criminals early to keep crowding down.

Allen Hopper, criminal justice policy director at the ACLU of Northern California, told the Chronicle pretrial programs save taxpayer dollars and ensure that jail beds are filled with people already convicted of crimes, not those "who are presumed, under our constitutional form of government, innocent until proven guilty."


To read more: http://www.sfgate.com/crime/article/Pretrial-programs-push-no-bail-release-3970002.php#ixzz2A86dUA6B

Listen to Mangino's Commentary on WYSU-FM

Listen to my October 26, 2012 commentary, "The Cost of Pretrial Detention" broadcast during NPR's Morning Edition on WYSU-FM.

Click here: http://wysu.org/commentary.php