NSPJ Report 2011

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NATIONALSYMPOSIUMON PRETRIAL

JUSTICECONVENED BY THE U.S. DEPARTMENT OF JUSTICE, OFFICE OF JUSTICE

PROGRAMS AND THE PRETRIAL JUSTICE INSTITUTE

May 31–June 1, 2011 – Washington D.C.

Summary Report of Proceedings

Preparation of this document was supported by Grant No. 2010-DB-BX-K034 awarded by the Bureau of Justice Assistance tothe Pretrial Justice Institute. e Bureau of Justice Assistance is a component of the Oce of Justice Programs, which also includesthe Bureau of Justice Statistics, the National Institute of Justice, the Oce of Juvenile Justice and Delinquency Prevention, the Oce for Victims of Crime, the Community Capacity Development Oce, and the Oce of Sex Oender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Points of view or opinions in this document are those of the author and do not necessarily represent the ocial position or policies of the U.S. Department of Justice.



N A T I O N A L S Y M P O S I U M O N P R E T R I A L J U S T I C E

Te Pretrial Justice Institute (PJI) is the nation’s only independent, nonprot organization stafed by pretrial justice experts dedicated to inormed pretrial decision making. PJI promotes saer communities by

providing training and technical assistance to criminal justice stakeholders, advocating or evidence-basedpretrial laws, and educating the public about the public saety and nancial impact o pretrial decisions.

Over the last several years, many people have worked diligently to raise awareness o and support orthe improvement o pretrial justice practices. Tat work culminated in the 2011 National Symposiumon Pretrial Justice. PJI would like to thank the ollowing individuals rom the Oce o Justice, USDepartment o Justice:

• Laurie O. Robinson, Assistant Attorney General• Marlene Beckman, Counsel to the Assistant Attorney General • James H. Burch, II, Deputy Assistant Attorney General, Oce o Justice Programs, US Department

o Justice • Kim Ball, Senior Policy Advisory or Adjudication, Bureau o Justice Assistance, OJP, DOJ

PJI would like to thank the distinguished moderators and panelists who contributed to the Symposium.PJI would also like to provide a special thanks to imothy R. Schnacke, Criminal Justice Planner,

Jeferson County, Colorado, or his work in preparing this Symposium Report.

ACKNOWLEDGEMENTS




CONTENTS

INRODUCION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MAY 31, 2011

WELCOME AND OPENING REMARKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PANEL – HE AORNEY GENERAL’S 1964 CONFERENCE ON BAIL REFORM:

CONEX, ASPIRAIONS, AND IMPAC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PANEL – 1964 O HE PRESEN: 50 YEARS OF BAIL REFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

PANEL: PERSPECIVES ON ODAY’S PRERIAL JUSICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CLOSING REMARKS FOR DAY ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

JUNE 1, 2011

PANEL – EVIDENCE-BASED REFORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

PANEL – SUCCESS A HE LOCAL LEVEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

REMARKS FROM HE HONORABLE ERIC H. HOLDER, JR.,AORNEY GENERAL, U.S. DEPARMEN OF JUSICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

LUNCHEON SPEAKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

ANSWERING HE CHALLENGES – BREAKOU SESSION SUMMARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

PANEL: HE NEX 50 YEARS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CLOSING REMARKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

RECOMMENDAIONS OF SYMPOSIUM PARICIPANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39




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INTRODUCTIONIn 1964, then Attorney General Robert F. Kennedy convened the rstNational Conerence on Bail and Criminal Justice. Te conerence was

called to address the many shortcomings in the bail system that existedat that time and to showcase proven alternatives. Te conerence led tomany improvements in pretrial release decisionmaking, including there-writing o ederal and state statutes to list all the actors judges musttake into consideration in making pretrial release decisions, the estab-lishment o a presumption o release on the least restrictive conditionsreasonably calculated to assure public saety and court appearance, andthe listing o a range o options available to the court in making itspretrial release decisions.

Nearly hal a century later, despite these improvements, the pretrial re-

lease decisionmaking process remains deeply awed. In most instancesthroughout the country, pretrial release decisions are being made based solely upon the charge that hasbeen lodged, rather than the risks posed by each individual deendant. Moreover, criminal deendants areroutinely required to post a money bail to be released during the pretrial period. Te efect o these twopractices is that those deendants who have access to money are able to purchase their release, regardless o the risks they may pose to the saety o the community; those deendants who do not, many o whom arelow risk, must sit in jail until trial—at enormous public expense.

Current economic realities acing governments at all levels require a diferent approach to pretrial re-lease decision making practices. Approaches that rely on individualized assessments o risk and settingnon-nancial conditions o pretrial release individually tailored to address the identied risks have been

attempted and ound to be successul. Tey protect public saety, assure the appearance o deendants incourt, and reduce the costs to taxpayers o unnecessary detention.

Just as the 1964 Conerence drew attention to the many problems caused by the bail practices o that eraand pointed to viable, efective alternatives, the 2011 National Symposium on Pretrial Justice convened by the Oce o Justice Programs o the U.S. Department o Justice, together with the Pretrial Justice Insti-tute (PJI), highlighted the major shortcomings in current pretrial release decision making practices andshowcased eforts to improve those practices.

Te Symposium brought together representatives o associations rom a broad array o stakeholder groups,including law enorcement, judges, prosecutors, public deenders, jails, and victims, as well as county, state,

and ederal legislative and executive branch ocials, and private unders. Tis document presents the sum-mary proceedings o that Symposium.1

1 For a complete, verbatim record o the Symposium, please visit www.pretrial.org/symposium.html to order a video disk set.Selected speeches have also been posted.

Dear Colleague:

The Office of Justice Programs (OJP), with the support of OJP’s Bureau of Justice Assistance(BJA), is sponsoring a National Symposium on Pretrial Justice on May 31 to June 1, 2011, at theRenaissance Washington, DC Downtown Hotel, 999 Ninth Street, N.W., Washington, DC. Almost 50years after the first national meeting on bail and pretrial release convened by then Attorney General

Robert F. Kennedy, OJP will bring together leaders in the pretrial community and significant criminal justice stakeholder organizations to resume this important conversation so vital to fair and equal justice inthis country. The purpose of this correspondence is to invite you or your representative to participate inthe symposium.

Symposium participants will examine how far we have come and how far we have to go toachieve safe and fair pretrial release and diversion practices in our communities. The symposium willaddress the challenges and opportunities for forging effective alliances, building and strengthening

innovative partnerships, and otherwise collaborating in ways associated with front-end decision-makingin criminal case processing. In addition to helping shape a new BJA initiative on pretrial justice, we hopethat a product of the event will be broad-based support for improvements in the administration of pretrial justice in order to maximize fairness, improve public safety, and contain costs to the system.

The symposium agenda includes several plenary sessions, as well as opportunities for small groupdiscussions. The event will begin at 1:00 p.m. on Tuesday, May 31st, and continue through5:00 p.m. on June 1st. Please register through our password-protected Web site on

[email protected]. The case-sensitive password is PTJ2011. CourtesyAssociates is the contractor handling logistics for this symposium. If you have any questions onregistration or logistics, please contact them on (202) 973-8634 or [email protected] by April 21st regarding your availability to participate.Once you have confirmed your attendance with the contractor, they will provide you with additional

information about logistics. There also may be an opportunity for others from your organization to participate. If you have programmatic questions regarding the symposium, you may contact MarleneBeckman, Counsel, OJP, at [email protected] (202) 616-3562.

I look forward to your participation in what I hope will be a huge step in making pretrial justicestronger and more effective for all.

Sincerely,

Laurie RobinsonAssistant Attorney General

http://www.pretrial.org/symposium.html

http://www.pretrial.org/symposium.html



A P U B L I C A T I O N O F T H E P R E T R I A L J U S T I C E I N S T I T U T E

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WELCOME AND OPENING REMARKSimothy J. Murray, Executive Director, Pretrial Justice Institute; James H. Burch, II , then Acting Director,Bureau of Justice Assistance, Oce of Justice Programs, U.S. Department of Justice; Te Honorable Laurie

Robinson, Assistant Attorney General, Oce of Justice Programs, U.S. Department of Justice; Te Honorable Pedro R. Pierluisi, Resident Commissioner of Puerto Rico, U.S. House of Representatives; William . (Bill) Robinson III , President Elect, American Bar Association.

TIMOTHY J. MURRAY

In welcoming Symposium participants, Mr. Murray stressed thatthere are many challenges acing pretrial justice. Tose challenges,according to Mr. Murray, include the act that courts incarceratecountless deendants who will be released rom jail only ater they are convicted or after their charges are dropped—notwithstandingtheir presumption o innocence. “All too oten,” Mr. Murray said,

“our current system permits the unettered release o dangerousdeendants while those who pose minimal, manageable risk areheld in costly jail space. All too oten, we see pretrial release deci-sionmaking built upon a one-dimensional model, which neither

supports the legislative presumption in avor o release, nor takes into account the individual strengths andrisks o each deendant.”

Accordingly, Mr. Murray said, while ocials struggle to nd solutions to the challenges o pretrial justice,the Symposium itsel is evidence that addressing these challenges is possible. Indeed, he stated, there aremany key advantages today that were unavailable to those attending the rst national conerence: “Withthe advantage o modernized bail laws in the majority o states, with the advantage o evidence-based

practice to guide and inorm our work, with the advantage o jurisdictions that have conronted theseissues head-on, and shown that sae, efective, and air pretrial justice can be a reality, this time more thanever is our turn to get it right.”

JAMES H. BURCH, II

Mr. Burch began his opening remarks by emphasizing the “remarkablepartnership” between the U.S. Department o Justice and PJI to move thepretrial eld orward and to urther their shared missions o ensuring the airadministration o justice. Te partnership began in the early 1980s, he stated,

with the Bureau o Justice Assistance (BJA) unding the rst supervisedrelease demonstration program. Tat efort was ollowed by initiatives toimplement enhanced and stringent perormance measurements or pretrialrelease, as well as to und the national survey o pretrial programs, which hasbeen conducted every 10 years since its inception.

As noted by Mr. Burch, BJA’s recent accomplishments in the pretrial eld include: (1) publishing withPJI and the National Association o Counties the document titled, Jail Population Management: Elected

MAY 31, 2011

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County Ocials’ Guide to Pretrial Services2; and (2) publishing with PJI and the International Associationo Chies o Police the document titled, Law Enforcement’s Leadership Role in the Pretrial Release and De-tention Process,3 the rst document in history to acknowledge and explore in depth law enorcement’s roleand interest in pretrial justice. In addition, BJA is currently working with PJI and the American Probation

and Parole Association to develop a document describing promising practices in providing pretrial servicesunctions in probation agencies.

Partnering in-house, BJA worked with the National Institute o Justice to convene a ocus group o expertsin the eld o evidence-based risk prediction to explore how the current science can assist in pretrial releasedecisionmaking. Based on that endeavor, Mr. Burch said, BJA and PJI published the document titled, State of the Science of Pretrial Risk Assessment ,4 which discusses (1) critical issues related to pretrial release, detention,and risk assessment; (2) challenges to implementing evidence-based risk assessment; (3) methodologicalchallenges associated with prediction o risk; and (4) recommendations or urther research and practice. Mr.Burch noted that the same ocus group also recommended developing and disseminating more inormationabout evidence-based practices in pretrial supervision, a recommendation that led directly to the document

titled, State of the Science of Pretrial Release Recommendations and Supervision,5 which comprehensively discuss-es both legal issues and research results surrounding a variety pretrial release conditions and interventions.

Mr. Burch also emphasized BJA’s role in practical application through helping dozens o local jurisdictionsand communities to implement pretrial services programs, including (with the help o the Vera Instituteo Justice) helping the City o New Orleans, Louisiana, plan its rst ever such program. “We do this,” Mr.Burch explained, “because we know that or our justice system to be air, to be sae, and to be efective,that we must have pretrial services in place and they must be evidence based or evidence driven.”

Further emphasizing BJA’s philosophy o working both nationally and locally on issues o pretrial justice,Mr. Burch commented on the success o the Justice Reinvestment Initiative, a data-guided approach to

reducing corrections and related criminal justice spending and reinvesting savings in strategies designed toincrease public saety.6 Going orward, Mr. Burch indicated his intention to replicate that initiative’s suc-cesses at the state level to counties and cities across America.

Overall, Mr. Burch credited much o his agency’s success to the support o Congress, which gives theDepartment o Justice discretionary unding to ocus on emerging and chronic issues (such as those be-ing discussed during this Symposium), as well as to the current leadership at the Department’s Oce o

Justice Programs, who, he said, incorporate equal measures o vision, ability, and conviction.

2 Cherise Fanno Burdeen, Jail Population Management: Elected County Ocials’ Guide to Pretrial Services (NACo,

BJA, PJI, Sept. 2009), available at http://www.pretrial.org/Reports/Pages/default.aspx. 3 Susan Weinstein (principal author) Law Enforcement’s Leadership Role in the Pretrial Release and Detention Process(IACP, BJA, PJI, Feb. 2011) available at http://www.pretrial.org/OurServices/Advocacy/Pages/default.aspx [hereinaterLaw Enforcement’s Role ].

4 Cynthia A. Mamalian, Ph.D., State of the Science of Pretrial Risk Assessment (BJA, PJI, Mar. 2011) available at http:// www.pretrial.org/Pages/bail-decision.aspx.

5 Marie VanNostrand, Ph.D., Kenneth Rose, Kimberly Weibrecht, J.D., State of the Science of Pretrial Release Recom-mendations and Supervision (BJA, PJI, June 2011) available at http://www.pretrial.org/Pages/bail-decision.aspx

6 A summary o the initiative can be ound at http://www.ojp.usdoj.gov/BJA/topics/justice_reinvestment.html.

http://www.ojp.usdoj.gov/BJA/topics/justice_reinvestment.html

http://www.ojp.usdoj.gov/BJA/topics/justice_reinvestment.html




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THE HONORABLE LAURIE O. ROBINSON

Calling the Symposium “historic” and “a remarkable gathering” o expe-rienced and inuential participants, Assistant Attorney General (AAG)Robinson began her opening remarks by ormally renewing the Justice

Department’s commitment to the important issue o pretrial justice.AAG Robinson stated that the goals o the Symposium were “to push theissue o pretrial justice back out into the open,” and “to determine how wecan move the eld closer to sae, efective, and air pretrial justice systems”by ocusing especially on the decision to release or detain a deendantprior to trial, a decision with critical importance in terms o public saety,airness, and cost.

Te Department o Justice’s decision to recommit to the issue o pretrial justice, she said, comes partly asa result o its own data showing both (1) high numbers o pretrial deendants unnecessarily incarcerateddue to lack o unds to post nancial conditions o release, and (2) increasing use o pretrial detention

despite declining crime rates. Pretrial detention, she stressed, has signicant consequences. “One hugeconsequence o this is that pretrial detention comes at enormous scal costs to already strapped localgovernments—and it has proound social costs to our communities. It doesn’t have to be this way, becauseresearch suggests that many o those who are detained could be saely released.”

AAG Robinson reminded Symposium participants that they would be asked to make realistic and work-able recommendations or reaching the Symposium’s goals. It is a challenging task, she noted, “but noless challenging today than it was in 1964—and surely no less important.” Nevertheless, she said, “armed

with enlightened data-driven practices and . . . a renewed commitment to [pretrial justice] issues . . . I amoptimistic that, working together, our shared vision o sae, efective pretrial justice or all can at long lastbecome a reality.”

THE HONORABLE PEDRO PIERLUISI

Commissioner Pierluisi (House o Representatives, Puerto Rico) preaced his opening remarks by makinga promise: “Count on me to help you on the Hill or anything, to help you do even better in helping allthose who interact with the American justice system.” In making this commitment, Commissioner Pier-luisi noted an increasing recognition among policymakers that their current approach to criminal justice,including pretrial practices, is in need o reorm.

o Commissioner Pierluisi, the current motivating actor or a re-examination o pretrial practices comesrom budgetary concerns at every level o government, with legislators across the country seeking to cut

spending without harming worthy programs. Observed through a budgetary lens, he stated, the cost o unnecessary detention is “breathtaking.” Accordingly, he said, “[a]s budgets are scrutinized or cost savings,all o us should push our elected ocials to make the connection between reorming pretrial practices, onthe one hand, and saving taxpayers’ money, on the other.”

Recalling his work in criminal sentencing as an illustration, Commissioner Pierluisi explained how “one-size-ts-all” solutions that limit judicial discretion can oten lead to negative consequences, such as

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unnecessary incarceration and growing numbers o people orced to navigate their world with stigmatiz-ing criminal convictions. Instead, he stated, increased discretion and various alternatives to incarcerationshould be explored, especially those diversionary programs that result in no record o conviction.

WILLIAM T. (BILL) ROBINSON, IIISpeaking directly to his constituency, Mr. Robinson called on the 400,000 members o the American BarAssociation (ABA), as lawyers and ocers o the court, to make access to justice a top priority, and torecognize that “dealing with that issue at the pretrial level o justice is critical to the uture o this country.”

Te ABA works through collaboration, Mr. Robinson said, and much o its important work is donethrough its Criminal Justice Section, which “brings over 20,000 members together including prosecu-tors, deense lawyers, judges, academics, parole and probation ocers, orensic accountants, and countlessothers to work together on the common goal o improving criminal justice” and to make the ABA Stan-dards on Pretrial Release a reality across the country. Tose standards call or the assignment o the leastrestrictive bail conditions and the release o deendants pending trial. Although the Standards recognize

that detention is an appropriate response i releasing a deendant endangers public saety and leads toight risk, such detention should be implemented only ater clear identication o relevant risk actors by adequate pretrial service agencies.7 Te Standards also urge state bail reorm through legislation modeledater the Standards.8

In his remarks, Mr. Robinson announced that the Criminal Justice Section recently launched a majorproject identiying pretrial release as one o ve broad policy changes to save states money. Te other ourareas were: decriminalization o minor ofenses, reentry, parole and probation, and community corrections.

Mr. Robinson described the criminal justice system as “broken,” and he used a number o statistics show-ing America’s high incarceration rate to punctuate his point. Nevertheless, he reerred to various biparti-

san state-level reorms in exas, Oklahoma, and Kentucky as demonstrating “[that] legislators can makechanges that saeguard the public and save money.” Echoing James Burch’s comments on justice reinvest-ment, Mr. Robinson concluded by emphasizing that unding the courts is an important prerequisite topretrial justice: “By utilizing the savings rom criminal justice reorm, state legislatures can reinvest moreinto the court system to ensure proper stang and ecient court dockets to better achieve access to jus-tice and equal justice under law.”

7 ABA Urges Pre-Trial Release Reform to Save States Money, Reduce Recidivism and Protect the Public, available at http://www2.americanbar.org/sections/criminaljustice/CR203800/PublicDocuments/pretrialdetention.pd; see also Dialogue on Strategies to Save States Money, Reform Criminal Justice & Keep the Public Safe, available at http://www.americanbar.org/content/dam/aba/events/criminal_justice/dialogpacket.authcheckdam.pd.

8 See Amer. Bar Ass’n, ABA Standards for Criminal Justice, Pretrial Release 32 (3rd Ed. 2007) [hereinater ABA Stan-dards].

http://www2.americanbar.org/sections/criminaljustice/CR203800/PublicDocuments/pretrialdetention.pdf

http://www.americanbar.org/content/dam/aba/events/criminal_justice/dialogpacket.authcheckdam.pdf




http://www2.americanbar.org/sections/criminaljustice/CR203800/PublicDocuments/pretrialdetention.pdf




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PANEL – THE ATTORNEY GENERAL’S 1964CONFERENCE ON BAIL REFORM:

CONTEXT, ASPIRATIONS, AND IMPACT Moderator: Barry Mahoney, President Emeritus, Justice Management Institute, Denver, Colorado. Panelists: Herbert Sturz, Senior Adviser for the Oce of the Senior Adviser Program, Open Society Foundations, NewYork, New York; Te Honorable Patricia Wald , Chief Judge, U.S. Court of Appeals, Washington, D.C. Circuit Court (Retired), Washington, D.C.

Te 1964 National Conerence on Bail and Criminal Justice was the genesis orsome o the nation’s most dramatic improvements in the administration o pretrial

justice. Tese panelists were intimately involved with the rst Conerence andthus were asked to highlight the context, aspirations, and impact o that event.Herbert Sturz was Director o the Vera Foundation (now the Vera Institute o

Justice) rom its ounding in 1961 until 1978, and his early work there was pivotalin shining a light on prevailing bail practices, as well as in introducing potentialsolutions or discussion during the 1964 Conerence, o which he was a co-director

with Daniel Freed. Among other notable accomplishments, Judge Patricia Wald (permanent staf member or the 1964 Conerence) researched and co-wrote the

comprehensive report titled, “Bail in the United States: 1964,” which became the centerpiece o discussionduring that Conerence. Moderator Barry Mahoney is a pretrial pioneer in his own right, having servedas the London Director o Vera, as a member o the American Bar Association’s ask Force on PretrialRelease, and as commentary editor or the current edition o the American Bar Association’s Criminal

Justice Standards on Pretrial Release.

Herb Sturz, Anne Rankin, and Barry Mahoney. D a v i d Y . L e e f o r P u b l i c W e l f a r e F o u n d a t i o n




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According to Mr. Mahoney , the 1964 Conerence on Bail and Criminal Justice was a “major catalyst tosignicant improvements to pretrial justice.” Tus, he said, to assess the state o pretrial justice in 2011, itis important to look back at the context in which the earlier Conerence was held, the hopes and aspira-tions o its organizers, and its impacts.

Mr. Mahoney started the panel discussion by asking Herbert Sturz why he and the Vera Foundationinitially looked into changing the surety bail system. He asked, “What was wrong with that system?” Mr.Sturz replied that it was Louis Schweitzer, well known industrialist and philanthropist, who rst ques-tioned detaining people or lack o money to pay bail. According to Mr. Sturz, Schweitzer, a Russian im-migrant, had read the U.S. Constitution’s Excessive Bail Clause and believed that a $10 bail amount wasexcessive to someone having only ve dollars. When Schweitzer asked him to look into the issue in 1961,Mr. Sturz said, he ound thousands o persons in New York who were convicted o no crime and weremostly indigent (as they are today, he noted) and who were detained in jail or lack o money. Tat nding,he said, was the genesis o the Vera Foundation and the “journey” that has led to today’s Symposium.

As Mr. Sturz urther explained, in early 1961, he and Schweitzer had met with Robert Kennedy, who ex-pressed “dismay” at what the pair had ound concerning bail. Kennedy asked the two to work with othersin the eld to help remedy the situation. Unortunately, as Kennedy’s advisor David Hackett explained tothe Attorney General, there was no one else working in the eld—there was, essentially, no eld. Unde-terred, Mr. Sturz stated, he and Schweitzer moved orward and were quickly introduced to District o Co-lumbia Circuit Court Judge David Bazelon through their mutual acquaintance, pioneering bail researcherCaleb Foote. Judge Bazelon, in turn, introduced Mr. Sturz and Mr. Schweitzer to Supreme Court Justices

William Brennan and William Douglas, who suggested the creation o an advisory group to inquire intobail practices.

Mr. Sturz said that Louis Schweitzer had rst proposed creating a public bail und to pay people’s bail

amounts in particular cases, but that idea was quickly set aside to work on ways to give the court what itdid not have: veried inormation on deendants. Tus, the Manhattan Bail Project, which involved in-terviewing deendants who were held on bail, identiying those at good risk o coming back to court, andrecommending to the court that they be released, was born. o Mr. Sturz, the real strength o the projectcame rom its experimental design, which allowed meaningul comparison among deendants, and whichhelped the researchers to conclude that when courts had veried inormation about deendants concern-ing their risk o ight, those deendants were three times more likely to be released on recognizance andthree times less likely to go to prison i convicted.

As or the 1964 Conerence, Judge Wald reminded Symposium attendees that the original impetus in the1960s was poverty and the impact o poverty on deendants in the criminal justice system, a topic that was

oremost on the mind o the Attorney General. Moreover, she stated, the climate o the 1960s itsel os-tered a powerul sense o hope that things could and would change. At the time, she noted, Earl Warren

was Chie Justice o the United States, and even Sam Ervin, a conservative Senator rom North Carolina, was a vocal champion o bail reorm. Te climate or change is somewhat diferent now, she said, and thecountry may be less sympathetic toward poverty. Instead, it appears to be more pragmatic and concerned

with what works, which has ocused our attention on workable, evidence-based risk assessments.




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Judge Wald added that a limitation on the strategies o the 1960s was caused by uncertainty about what todo i money were completely eliminated in the administration o bail. Because at the time, the only validconstitutional purpose o bail was to provide a reasonable assurance o court appearance, she said, the issueo public saety and preventive detention created tension among civil libertarians and others who won-

dered what might happen in a world without money bail. Nevertheless, she said, the 1964 Conerence: (1)put the subject o bail reorm on the national table as something that had to be recognized; (2) put up ordiscussion alternatives to the traditional money bail system, many o which showed up in the Bail ReormAct o 1966; (3) encouraged the ormation o, and gave direction to, various institutions and still-activebail and pretrial projects; and (4) “helped to create world-wide recognition” o pretrial justice.

Mr. Sturz noted that signicant progress has been made since the 1960s in the numbers o people re-leased on recognizance, at least in New York. Nevertheless, he stated, there are still thousands o persons

who cannot aford their “low” bail amounts, and there are many innovative but underutilized practices(such as providing access to phones) that can also reduce unnecessary incarceration.

When asked about his hopes or this Symposium, Mr. Sturz stated that he hopes to see more ocus onront-end criminal justice issues, especially or those charged with minor ofenses, and on diferent ormso supervised pretrial release. Judge Wald said that she hopes to see less use o money bail, and more useo risk assessment devices that can be used at every criminal justice decision-point by every criminal jus-tice decisionmaker.

In closing, Mr. Mahoney read aloud the ollowing two passages rom Judge Wald’s 1964 publication,Bail in the United States: 1964 , which, he noted, is still pertinent to the pretrial eld today:

All available studies conrm two dominant characteristics in the national bail pattern: In a system which grants pretrial liberty or money, those who can aford a bondsman go ree; those who cannot,

stay in jail.9

Te trouble with the present system is that by relying on money, it jails too many o the poor; it alsoprotects too little against the dangerous.10

9 Daniel J. Freed and Patricia M. Wald, Bail in the United States, 1964 (Prepared as a working paper or the NationalConerence on Bail and Criminal Justice), supra note 12, at 21.

10 Id. at 110.




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PANEL – 1964 TO THE PRESENT:50 YEARS OF BAIL REFORM

imothy J. Murray, Executive Director, Pretrial Justice Institute; Dr. James Austin, President, JFA Institute.

Despite the initial success of the 1964 Conference, subsequent decades have seen a steady increase in pre-trial detention. Tis session explored the development of signicant pretrial legislation, the emergence of pretrial service professionals, and the availability of data that reect the enormity of the challenges ahead.During this panel, Timothy J. Murray and Dr. James Austin took turns presenting why, 50 years later, a renewed commitment in the area of pretrial justice is needed.

TIMOTHY J. MURRAY

Mr. Murray described the 1964 Conerence as the “pivotal moment” in bail reorm, with “all lines” tracingback to the work done or and in that Conerence. He then summarized the various reorms that oundtheir genesis in that gathering.11 Shortly ater the Conerence, he stated, Congress passed the Federal Bail

Reorm Act o 1966. Tat Act (the rst major reorm o the ederal bail system since the Judiciary Act o 1789) established, among other things, a presumption in avor o pretrial release under the least restric-tive conditions, actors or courts to consider in making the release decision, and a range o options thatcourts should use to respond to the risks posed by each individual deendant. Using that Act as a model,he explained, most states passed laws with similar provisions, and our states went urther, abolishing com-mercial bail bonding. In the 1970s and 1980s, 34 states, the District o Columbia, and the ederal systemadded public saety as a legitimate purpose o bail in addition to court appearance, and that purpose, along

with the ederal preventive detention provisions designed to address it, was upheld as constitutionally validby the United States Supreme Court in 1987.12

As in today’s Symposium, Mr. Murray stated, the 1964 participants represented a broad array o inuen-tial organizations, and many o those organizations soon issued important statements on bail and pretrialrelease. In 1968, the American Bar Association published its Criminal Justice Standards on Pretrial Release .

Tat was ollowed by other national standards, such as those issued by the National District AttorneysAssociation, each reecting the view that the traditional bail system was awed, primarily due to its em-phasis on money bail bonds and commercial sureties. Other inuential persons and organizations startedbail projects modeled ater the Manhattan Bail Project, he added, and soon hundreds o pretrial servicesprograms and agencies existed across the country.

In 1973, Mr. Murray stated, pretrial practitioners joined together to create the National Associationo Pretrial Services Agencies, an organization dedicated to developing and supporting pretrial servicesprograms nationwide. Moreover, in 1974, the ederal government began a pilot project to create pretrialservices unctions in the ederal courts, which was ultimately expanded to its current use in all 94 ederaldistricts. And in 1977, he said, the U.S. Department o Justice unded the establishment o the PretrialServices Resource Center (now PJI) to act as a clearinghouse and centralized source o inormation orpretrial services programs.

11 A comprehensive history o bail and pretrial release may be ound on the Symposium website at http://www.pretrial.org/materials.html.

12 See United States v. Salerno, 481 U.S. 739 (1987).




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Overall, stated Mr. Murray, since 1964 “a lot went right,” with multiple stakeholders working on difer-ent paths toward meaningul bail and pretrial reorm. Nevertheless, he said, the data show that there isa signicant distance to go to achieve pretrial justice. Moreover, legislation is being introduced in state-houses across the county that is decidedly diferent rom the legislation seen in the wake o the 1964 Bail

Conerence. He provided the ollowing examples: (1) bills seeking to eliminate judicial discretion to grantnon-nancial release and pretrial services supervision to virtually all arrestees, using instead release on asurety bond; (2) bills seeking to impose onerous reporting conditions on pretrial services programs to limittheir efectiveness; and (3) bills seeking to prohibit any state or county unding o pretrial services pro-grams. Tese bills, said Mr. Murray, avor the creation o one system o justice or one class o deendantsand another system or everyone else, reminiscent o the “separate but equal” laws and policies o an earlierAmerica.

As in 1964, he added, there is key stakeholder input on, and support o, critical elements o pretrial justice. oday, those stakeholders include, among others, the National Association o Counties, the AmericanProbation and Parole Association, the Association o Prosecuting Attorneys, the International Associa-

tion o Chies o Police, the American Jail Association, the American Bar Association, and the AmericanCouncil o Chie Deenders o the National Legal Aid and Deender Association. Moreover, Mr. Murray stated, today there are pretrial services programs and agencies across the country completing risk assess-ment validation studies and continually working on evidence-based programmatic elements. In addition,the National Association o Pretrial Services Agencies has begun developing accreditation procedures, andthe National Institute o Corrections continues to provide week-long training sessions or pretrial servicesproessionals.

And yet, Mr. Murray said, many pretrial services programs across the country are underunded, under-stafed, undertrained, and handcufed by special interests who seek to target their use to only indigent orthe most “sae” deendants. Across the country, prosecutors are routinely asking or nancial conditions o

release in virtually every case, sometimes treating an alternative release mechanism with pretrial supervi-sion as a “avor” to be bestowed on a chosen ew. When they are even present in the room, Mr. Murray explained, public deenders are desperately trying to get judges to ocus on their client’s nancial meansbecause a money bond “is, in act, inevitable.” And across the country, he said, judges are setting incapaci-tating money bonds due to concerns about public saety, but with no hesitation o releasing those samedeendants on probation once they are ultimately convicted. Indeed, “[t]he naming o a dollar amount, inmany cities printed on a laminated card next to the charge type, is seen as . . . the best we can do.”

Nevertheless, Mr. Murray said, there are jurisdictions with highly ecient and unctional pretrial servicesprograms that work closely with judges, prosecutors, and public deenders who take leadership roles in pre-trial justice. Tus, he concluded, “our report card over the past 50 years is a mixed one, at best.” “It is clear to

me,” he added, “that sae and efective, air pretrial justice will only come as a result o the change o culturein the courtrooms.” But although pretrial justice as it is currently practiced in most o America’s courtroomsmay seem stuck, it has the law, the data, and even common sense on its side. Moreover, he noted, America’scriminal justice systems have already witnessed legal cultural change by being shown a “better way” in otherareas o the law, such as with drug addiction, mental health issues, and reentry. “Te 1964 conerence showedthe country a better way,” Mr. Murray stressed. “I challenge you to do the same here.”




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JAMES AUSTIN, PH.D.

Dr. James Austin provided an overview o important trends in jail and pretrial release to provide urthercontext or the last 50 years. With his rst slide,13 Dr. Austin proclaimed that the “war on crime is over,”

with the overall national crime rate hovering about where it was in the mid-1960s and showing signs that

it will continue to decline.

According to Dr. Austin, punishment in the criminal justice system is currently being meted out through jail admissions, a process that happens to roughly 13 million persons per year, compared to only 675,000persons who are admitted to prisons. On average, persons booked into jail stay about 21 days (about one-third are released within 2 to 3 days, but those who are not stay in much longer, with obvious ramica-tions or pretrial justice).14 On any given day, he stated, 61 percent o jail inmates are deendants awaitingtrial, most o whom are elony deendants. Nevertheless, he said, the vast majority o deendants releasedpretrial (approximately 80–85%) do not get re-arrested during the pretrial phase, and i they do, they arearrested almost completely or non-violent ofenses.

13 Dr. Austin’s PowerPoint presentation is available on the Symposium website, ound at http://www.pretrial.org/materials.html.

14 In a later panel, Arthur Wallenstein explained that in his studies o jail populations, he had determined thatinmate length o stay was the driving determinate (at about ve to one in importance, as compared with jail ad-missions) o jail population, and that we could tolerate signicantly higher numbers o arrests i we increased theeciency o the pretrial process through evidence-based practices designed to lower the average length o stay.

http://www.pretrial.org/materials.html







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Over time, he said, the number o pretrial releases is trending down. Tis is especially notable, said Dr.Austin, given the additional trend showing that the number o persons ordered released on nancial con-ditions is actually increasing.




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I we have won the war on crime, Dr. Austin said, we have decidedly lost the war on reducing jail popu-lations. In another slide, Dr. Austin showed that i the nation’s incarceration rate was reduced to the1980 rate (a time during which the crime rate was actually higher than it is today), there would be about500,000 ewer inmates in our jails on any given day. “o me, that’s our goal,” he said. “I we don’t have this

in our mind, [then] why do it?”

According to Dr. Austin, there were more elony releases in 1971 than today (even though money releases were about the same). He cited several possible reasons or that. First, despite the drop in crime, there hasbeen neither a comparable reduction in the adult arrest rate, nor a reduction in the nation’s law enorce-ment work orce. Second, deendants who are detained pretrial are more likely to accept guilty pleas, andmore likely to do so sooner, than those who are released—giving an incentive to the system to keep de-endants detained. Tird, most pretrial elons have criminal records that cause system concern, despite theact that those deendants may be manageable in the community. Fourth, we have increased the numbero classes o people ineligible or bail, despite whatever individual risk they may pose. Fith, case process-ing ineciencies are extending deendants’ lengths o stay. Sixth, judges oten pay no attention to the risk

assessments that are being done; as mentioned earlier, 80% o deendants will not be re-arrested, and threeout o our will not get into any trouble at all, a statistic that should lead to more comort with higherrelease rates. Other reasons include mental health, drug, and immigration issues, and, o course, wealthand money.

Tree out o every our elony deendants are returned to our communities within a ew months o theirdetention, Dr. Austin noted, oten sentenced to probation—sometimes ater their charges have beendismissed. In short, he said, they are not going to prison, calling into question whether compelling reasonsexisted to keep them detained during the pretrial period.

Dr. Austin then stressed that special consideration should be given to the “horric” and “embarrassing”

issue o race in our criminal justice system. As he illustrated in one slide, throughout the country, racialdisparity increases as one travels through the criminal justice system. Accordingly, he said, all justice sys-tem ocials should strive to ensure that they are at least not exacerbating that problem.

In closing, Dr. Austin stressed, “Pretrial justice has hit a wall in the United States, and unless we dosomething, we are going to stay where we are at, which is not acceptable.” Crime will continue to decline,he said, but the size o our correctional response will not drop in proportion to the drop in crime be-cause there will be “substantial system pushback on any kind o reorm that tries to drop that correctionalpopulation signicantly.” o counter this, he advised, we should stop ocusing on “low-risk/nonviolentofenders,” and instead ocus on high-risk persons who are arrested or violent crimes. But perhaps moreimportantly, he stated, in addition to their traditional work o supervising manageable deendants, pretrial

services agencies and programs should work with law enorcement to keep lower risk people rom comingto jail to begin with. Our national “numbness” to the experience o imprisonment, and its somewhat casualuse or so many ofenses must change, he stated. Finding a solution other than needlessly incarceratingpersons or whom jail is an improper response will be the “ultimate solution to bringing that jail popula-tion back to where it is supposed to be.”




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PANEL: PERSPECTIVES ON TODAY’SPRETRIAL JUSTICE

Moderator: Stephen A. Saltzburg , Professor, Wallace and Beverley Woodbury University, George Washington

University School of Law, Washington, D.C.

Panel Participants: Dennis Bartlett , Executive Director, American Bail Coalition, Fairfax, Virginia; Te Honorable James Carr , Senior Judge, United States District Court, Northern District of Ohio, Toledo, Ohio; Ed Monahan, Chair of the American Council of Chief Defenders, National Legal Aid and Defenders Associa-tion, Frankfort, Kentucky; Te Honorable Ron Machen, United States Attorney for the District of Columbia,Washington, D.C.; Will Marling , Executive Director, National Organization of Victim Assistance, Alexandria,Virginia.

Victims, defendants, jail sta, law enforcement, and many others feel the impact of the decisions madeat the front-end of the criminal justice system by policymakers and practitioners. Each stakeholder has a

perspective on the challenges and opportunities presented by legal and evidenced-based pretrial justice. Tese must be understood for reform to be renewed. Tis roundtable discussion provided an opportunity to examine various perspectives and to contribute to the development of priorities. Moderator StephenSaltzburg questioned the panel about their individual perspectives.

Professor Saltzburg started the session by reading a quote rom U.S. SupremeCourt Justice Robert Jackson, taken rom his concurring opinion in the 1951case o Stack v. Boyle (342 U.S. 1): “Te practice o admission to bail . . . isnot a device or keeping persons in jail upon mere accusation until it is oundconvenient to give them a trial. On the contrary, the spirit o the procedure isto enable them to stay out o jail until a trial has ound them guilty.” Proessor

Saltzburg asked Judge Carr or his impressions o why, 60 years ater Justice Jackson wrote those words, bail is still being used as a device to keep so many deendants in jail.

Judge Carr responded that money bail is ingrained in the system. When judges are new to the bench,he said, they simply continue the practice o their colleagues by setting money bails, without questioning

whether that is the best practice. o move orward, he stated, will require convincing state, municipal, andother judges that money bail is not needed to assure appearance and protect the saety o the community.Complicating this efort, he said, is the political inuence o the bail bonding industry, which has a vestednancial interest in perpetuating the use o money bail.

Proessor Saltzburg asked Ed Monahan what public deenders could do to help ensure that bail is not adevice to keep deendants in jail. Mr. Monahan responded that the problem is that, due to unding, publicdeenders might not even be present at the bail hearing and, i they are, they might have hundreds o casesto handle. Any strategy that is pursued or pretrial justice, he said, must take into account the critical needor public deenders to be present and to have the ability to competently do the work at rst appearance.

urning to U.S. Attorney Ron Machen, Proessor Saltzburg noted that many states have statutes that




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allow or the detention without bail o deendants who pose unmanageable risks, but judges and prosecu-tors do not use them, choosing instead to set high money bails. Tis is so, he said, because the proceduralrequirements to hold a deendant without bail are viewed as being too cumbersome, and it is so mucheasier to just set a high bail and hope that the deendant doesn’t post it. In both the ederal system and in

the District o Columbia, he noted, the detention provisions are invoked requently. Proessor Saltzburgasked Mr. Machen what D.C.’s experience has been in using the detention provisions o the statute tohold deendants at high risk o danger rather than relying on money bail.15

Mr. Machen responded that his oce processes 20,000 to 25,000 cases per year, and when his prosecutorsle those cases, which occurs beore the initial appearance in court, they make decisions on whether to ask or a hold, taking into account the two primary actors: risk to public saety and not showing up to court.Using the statute, he said, prosecutors obtain holds on about 15% o arrestees, with about 85% released onnonnancial conditions. He noted that the long list o nonnancial conditions designed to address risk that are available make him comortable in supporting release in such a high percentage o cases. Tis notonly is the correct way to do things, he said, but it is also a necessity, noting that he did not understand

how other jurisdictions can aford the jail bed space required to hold as many people as they do.

Proessor Saltzburg then asked Will Marling what role victims should play in the pretrial release deci-sionmaking process. Mr. Marling responded that while there has been progress in many states, there is ageneral lack o awareness in the victim community about pretrial practices. Victims are experts in their

victimization, he said, but they are not experts in the criminal justice system, so it makes sense that we would educate them and include them. While there is a presumption o innocence or the accused, he not-ed, with rare exceptions there is virtual certainty that someone has been victimized. He stated that victimsare not adequately included, but that they want to contribute and to ofer their perspective.

U.S. Attorney Machen joined this discussion, noting that through the assessment o danger, the interests

o the victim are paramount. Te ability to meet a money bond, he said, does nothing to help his pros-ecutors assess danger to the victim, so they ask or holds, when appropriate. He noted that his oce isortunate to have a victim/witness assistance unit, which talks to victims, provides a conduit to the courtdecisionmaking process, and provides services to victims.

Proessor Saltzburg then asked Dennis Bartlett whether bail bonding agents provide a necessary ser-

15 Although some states have one or more provisions similar to the D.C. and ederal statutes, the practical admin-istration o bail in those states is unlike the D.C. system, and to a lesser degree the ederal system, in that the statesstill have not adequately addressed the issue o money in their processes. For example, the D.C. statute acilitates amore risk-based approach through various provisions that mirror recommendations ound in the American Bar As-sociation’s Criminal Justice Standards on Pretrial Release. Important statutory provisions include: (1) a presumption o release on recognizance on the least restrictive conditions required to provide a reasonable assurance o public saety and court appearance; (2) a prohibition on using nancial conditions (money) to protect public saety; (3) a mean-ingul and transparent preventive detention section, which is based on individual deendant risk and includes dueprocess elements like those approved by the United States Supreme Court in United States v. Salerno, 481 U.S. 739(1987); (4) a prohibition on pretrial services supervision or anyone given a surety-option bond; and (5) a prohibitionon using nancial conditions (money) to reasonably assure court appearance i that condition results in the preven-tive detention o any particular deendant. In addition to these statutory provisions, the D.C. Superior Court alsobenets rom its incorporation o extensive judicial training on bail and pretrial practices or new judges.




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vice—one that should not be easily discarded in bail reorm eforts. Mr. Bartlett responded that thecommercial bail bond industry has approximately 15,000 bail agents and 10,000 support personnel, andcommercial sureties write about $13.5 billion ace-value in bail per year. Te industry is highly unstruc-tured and competitive, he said, but also highly accountable. Noting that approximately 330,000 persons

are bonded out o jail each month rom jails, he stated that the commercial bail bonding industry must betaken into consideration.

Professor Saltzburg concluded the panel discussion by ofering the ollowing suggestion or consider-ation: In Canada, he said, there is a provision orbidding law enorcement ocers rom arresting a personon a minor crime, instead issuing a citation, unless that person poses a real danger to the community. Teailure to appear rate o those released on citation is low. One o the things that should be considered,he suggested, is cutting back on custodial arrests by using more citation releases. We currently allow law enorcement ocers to act as judge and jury, he said, by allowing them to incarcerate deendants on minorofenses that do not normally lead to jail as punishment.




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CLOSING REMARKS FOR DAY ONETe Honorable Eric . Washington, Chief Judge, District of Columbia Court of Appeals, Washington, D.C.

THE HONORABLE ERIC T. WASHINGTON Judge Washington began his remarks by promising, as President-elect o theConerence o Chie Justices,16 to bring the important issue o pretrial jus-tice beore that group to debate and discuss what should be done to supportreorm in this area. “It is really interesting to me,” he said, “that it took 50

years or us to reconvene a national symposium on the issue that is so critical,so important to the air administration o justice.” Judge Washington statedthat while he was ortunate to preside in the District o Columbia—a juris-diction that has seen much pretrial reorm and that is in the vanguard o thebail reorm movement—he recognized that jurisdictions like D.C. are in theminority.

It was in D.C. in 1970, the judge stated, that an American jurisdiction rst enacted a meaningul preventive detention provision to openly address danger to the community at bail. Rather than continuethe “hypocrisy” o allowing judges to set unafordable money bail amounts to protect the public whileespousing a presumption o release, the D.C. Bail Reorm Act went urther than the ederal bail act by allowing prosecutors to petition the court to detain certain deendants, without bail, through the use o careul, restrictive detention categories. Tis statute, he explained, has resulted in only the truly dangerousdeendants being incarcerated pretrial because detention occurs only i no condition or combination o conditions can provide reasonable assurance o either court appearance or public saety. “As a result o ourcurrent practice,” he said, “the number o individuals unnecessarily detained, particularly nonviolent andlow-risk persons, has been signicantly reduced.” Specically, he noted, 85% o deendants in the District

o Columbia are released pretrial.

Judge Washington stated that jurisdictions should recognize that some up-ront money is likely necessary to enhance pretrial justice. Nevertheless, he noted, money saved in the long run will be substantial, as thecost to supervise persons in the community “pales” in comparison to the cost to incarcerate them. Withve-sixths o pretrial elony deendants unable to meet the nancial conditions o their bail bonds, he said,local governments are spending more and more to house deendants who can be supervised in the com-munity at a much lower cost.

Tese practices are now a part o the culture in the District o Columbia, the judge explained, but it took time or that culture to change. Only ater an evaluation o the quality o the D.C. Pretrial Services Agen-

cy did the prosecutors and judges become comortable with the new system. Nevertheless, he said, “[w]hat is being done here in the District can be done in jurisdictions nationwide. Cash-based bail systemsinstitutionalize economic discrimination against the poor. Persons who can aford their reedom are ableto work, meet with their counsel, and actively participate in the preparation o their deense.”

16 Te Conerence o Chie Justices is made up o the highest judicial ocers o the 50 states, the District o Co-lumbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands.




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In conclusion, Judge Washington stated that this conversation should not take place another 50 years romnow. “What we have learned . . . is that it is time or reorm.” As long as you can protect the community and assure court appearance, he said, you have met community expectations or dealing with persons whohave been charged but not convicted, who are presumed innocent, and who should not be orced to serve a

sentence beore they are ound guilty.




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PANEL – EVIDENCE-BASED REFORM Moderator: Jeremy ravis, President, John Jay College of Criminal Justice, City University of New York, NewYork, New York.

Panel Participants: John Goldkamp, Ph.D., Professor, Temple University, Philadelphia, Pennsylvania; Christopher Lowenkamp, Ph.D., Probation Administrator, Administrative Oce of the United States Courts, Washington,D.C.; Marie VanNostrand, Ph.D., Justice Project Manager, Luminosity Inc., St. Petersburg, Florida.

Criminal justice system policy has entered a new era of evidence-based decisionmaking, and this notionis critical to the pretrial phase of a defendant’s case. During this session, the panelists, all experts in thepretrial eld, presented the implications of working solely on instinct, tradition, and political concerns,and provided promising evidence-based alternatives being used by jurisdictions nationwide to advancepretrial justice.

In the opening session o the second day o the Symposium, Moderator Jeremy Travis welcomed panelpresenters who had assembled to discuss the role o evidence, science, research, and predictive models toassist judges in pretrial decisionmaking. Tese panelists are here, he said, to help answer questions thathave consistently been at the core o the bail reorm movement—that is, what is the role o science andevidence, and how ar has the evidence carried us over the last 50 years?

DR. JOHN GOLDKAMP

Dr. Goldkamp began by noting that the application o science to questionso pretrial release and detention has a long history stemming rom actionresearch. However, when bringing science or empirically driven reorm toproblems in justice, he said, we must remember that “data are not sel-evident,

data do not tell us the answer, [and] risk is not the same as evidence-basedreorm.”

“Bail reorm,” he stated, “is a problem o judicial decisionmaking,” and, withthe exception o those in the ederal and District o Columbia justice systems,

judicial decisionmaking is complicated by the dollar, because money keeps judges rom making direct decisions, which, in turn, makes evaluation o

those decisions dicult. On a larger level, the connection between race, class, and connement is perhapsour biggest problem, he said. Our concern with re-arrest and ailures to appear is also real, as those issues,let unresolved, cause communities to become alienated and even to actively resist the justice system.

Dr. Goldkamp noted that researchers dating back 90 years, rom Roscoe Pound and Felix Frankurter,17

17 Roscoe Pound and Felix Frankurter,Criminal Justice in Cleveland . Te Cleveland Foundation, 1922; reprinted,Montclair, N.J.: Patterson Smith, 1968.

JUNE 1, 2011





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and Arthur Beeley 18 in the 1920s, to Caleb Foote19 in the 1950s, to the Vera Institute20 in the 1960s, iden-tied the same issues that we ace today. Yet, in Philadelphia and in other studies, he said, he worked with

judges to create pretrial release guidelines—built on data—to address many o these persistent issues atbail in a meaningul way.21 And by doing this, he said, we learned how to measure efectiveness. Dr. Gold-

kamp explained that in a perect world, pretrial justice might be demonstrated by releasing all deendants with no pretrial “ailures.” Tere would be empty jails, ull streets, no crime, and everyone would appearor court. But in real lie, he said, efective pretrial release is relative—we use some pretrial detention, werelease some people with error, and we systematically attempt to make that error less and less. Tus, in the

work that he did in Philadelphia, he noted, the approach ocused the judges on dening their own risk. Tis approach did not say, “Would you like to look at this risk recommendation scheme?” Rather, he said,it engaged the judges in the complicated task o assessing their own notions o risk. Given the currentPhiladelphia ramework o categories o deendants with risk built into it, he stated, the system is now experimenting with nding supervision options to appropriately address each category.

In conclusion, Dr. Goldkamp listed nine principal challenges to evidence-based reorm in the pretrial eld.

First, he said, we must “skip the dollar game” and move state systems to direct decisionmaking with mecha-nisms or eedback and review. Second, we must involve the judges and other principal players in creatingtheir own reorm—the system cannot be imposed on them. Tird, we must continue to actively researchrisk, as it is central to improving judicial decisionmaking. Fourth, as in guidelines, we should look at speciccategories o deendants and work to improve our response to risk in those categories. Fith, we should striveto empirically assess release options and supervision approaches—a concept probably already amiliar toprobation and parole practitioners. Sixth, he stated, we must have a measure o the efectiveness o pretrialrelease that we can begin to use to dynamically compare similar categories o deendants across jurisdictionsand within jurisdictions. Seventh, we need decisionmaker, deendant, and system accountability. Eighth, wemust use targeting strategies that might be based on such things as geography or stage-o-process consid-erations. And ninth, we must transorm the culture o resistance among deendants who believe that there

is no meaningul penalty or crime or or ailing to appear or court. Until now, he said, we have looked atthings very narrowly—now we must look at things more broadly, involving more system actors.

18 Arthur Beeley, e Bail System in Chicago. University o Chicago Press, 1922; reprinted, Chicago: University o Chicago Press, 1966.

19 Caleb Foote, “Compelling Appearance in Court: Administration o Bail in Philadelphia.” 102 University of Penn-sylvania Law Review 102(8) (1954): 1031.

20 Charles E. Ares, Anne Rankin, and Herbert Sturz, “Te Manhattan Bail Project: An Interim Report o the Useo Pretrial Parole.” New York University Law Review 38(1) (1963): 67–92.

21 John S. Goldkamp and Michael R. Gottredson, Policy Guidelines for Bail: An Experiment in Court Reform. Phila-delphia, PA: emple University Press, 1985.




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DR. MARIE VANNOSTRAND

Dr. VanNostrand began her remarks by noting that her earlier intense ocuson pretrial risk assessment was really only the beginning o her current work inpretrial justice, which is now aimed at achieving improvements in actual pretrial

practices. Although the law guides us, she stated, it does not tell us how to honorthe legal principles in practice. “For those answers,” she said, “we look to theresearch.” Dr. VanNostrand then explained that one promising practice is the ap-plication o the “risk principle,” which aims evidence-based practices and inter-

ventions toward moderate and higher risk deendants and away rom lower risk deendants (to whom such resources may actually cause harm) to produce betterpretrial outcomes. By applying this principle, she stated, “agencies can developlimited resources where they will provide the most benet to public saety.” Em-

pirical research in the ederal system examining some 500,000 cases has conrmed this, she added. Tus, atleast in the ederal system, “the law tells us that a person has the right to release on the least restrictive termsand conditions, and the research tells us that [such release is] going to produce the best outcomes.”

Dr. VanNostrand noted, or example, that the Southern District o Iowa applied the risk principle and wasable to: (1) increase pretrial services release recommendations by 16%; (2) increase actual releases by 15 %;and (3) improve pretrial outcomes (no-new crime rates, court appearance rates, and technical violations),saving roughly $2 million over the rst two years o implementation. Likewise, she stated, in SummitCounty, Ohio, ocials created guidelines or a risk-based (not money-based) system, ollowed thoseguidelines, and signicantly increased releases to the community with no changes in pretrial outcomes. By doing so, she said, Summit County also solved its jail crowding problem. Other jurisdictions have intro-duced diferential, risk-based supervision “guidelines” or other mechanisms based on the risk principle(one even adopting the slogan, “better decisions, saer communities”) with great success.

Ironically, she noted, some o the most impressive research is being done in jurisdictions that have legisla-tion pending that is inconsistent with both the empirical research and the law. Tese legislative efortsinclude bills to eliminate unsecured (no up-ront money required) bonds, to prevent magistrates romreleasing deendants to pretrial supervision, and to require magistrates who wish to release a deendant topretrial supervision to: (a) determine that the deendant is indigent; and (b) require a secured (up-rontmoney) bond or release. One bill, introduced in North Carolina, contained a clause that would prohibitboth state and local unding o pretrial services programs, she said.

Overall, she concluded, “Tere is no doubt that we are making progress in identiying efective practices tomanage risk—yet there is so much work to be done.” Next steps, she stated, must include true experimen-tal research to assess the impact o pretrial practices. In the meantime, she said, our criminal justice system

must change rom charge-based decisionmaking to risk-based decisionmaking, which would determinerelease and detention based on deendant risk and not deendant wealth, and which will reduce dispar-ity and related injustices to everyone in the community. Using objective risk assessments, criminal justicesystems must identiy the practices that are efective in reducing unnecessary pretrial detention while as-suring court appearance and public saety. And nally, she stated, we must not only change state laws, butalso prevent bills to amend state laws that are themselves unlawul and inconsistent with the evidence.





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DR. CHRISTOPHER LOWENKAMP

Dr. Lowenkamp concluded the ormal panel presentations with a slide show titled, “Evidence Based Reorm.”22 Evidence-based practice, he began, is aprocess or making decisions that derives rom the eld o medicine. It is

perhaps best dened as the “the intentional and unbiased use o the bestevidence available to make policy- and individual-level decisions abouttreatment,” which is diferent rom talking about a specic treatment. It isa process, he stated, to make policy and individual decisions rooted in evi-dence. Indeed, he added, “[t]here is no ‘evidence-based practices’ store,” whichmeans that the concept o simply going out shopping or various evidence-based items or programs (which one may not even use) is aulty. Moreover,“imitation-based practice,” which involves implementing what other jurisdic-tions do because they like it (albeit without evaluation or measured outcomes)

is not “evidence-based practice.” Instead, he said, evidence-based practice “requires a bottom line,” such asclearly articulated primary goals surrounding concepts like pretrial justice, beore looking or the evidence to

support those goals.

Discussing actual evidence currently ound in the pretrial eld, Dr. Lowenkamp summarized three impor-tant studies. Te rst o these involved a meta-analysis o risk predictors rom 13 studies meeting certaincriteria. Tat analysis ound, among other things, that static actors are better at predicting risk thandynamic actors are, a nding that is somewhat diferent rom relevant ndings rom the post-convictionliterature. Second, the analysis ound that a risk instrument (a composite scale) predicts better than any individual risk actor, but that the prediction is not as strong in pretrial instruments as it is in post-convic-tion instruments. And third, potentially competing interests in the pretrial eld (such as increasing publicsaety along with reducing unnecessary detention) might account or the need or diferent predictors oreach pretrial goal. Overall, he said, the strongest predictive actors in risk assessments were actors related

to criminal history, employment, and residence. And while the good news is that the constructs that onemeasures or risk assessment instruments are consistent across time and outcomes, he stated, “the bottomline . . . is that you have to validate your own risk assessment.”

Te second study looked at overall post-conviction re-arrest rates or low-, moderate-, and high-risk ederal ofenders who either: (1) had no pretrial supervision; (2) had successully completed pretrial su-pervision; (3) had ailed pretrial supervision; or (4) had been detained. What is clear rom that study, Dr.Lowenkamp explained, is that being detained or ailing on pretrial supervision is related to poor post-conviction outcomes, but successully completing pretrial supervision is apparently correlated (causationis unclear) with better outcomes post-conviction, all o which calls or research aiming, perhaps, towardbetter continuity on a continuum o justice.

Te third study he summarized was a ederal evaluation o SARR (Strategic echniques Aimed atReducing Re-arrest), which assigned pretrial ocers randomly to either the training protocol (the ex-perimental group) or to no training (the control group) and then looked at case outcomes both beoreand ater the training. Beore any training, 30% o the experimental ocer group’s and 34% o the control

22 Te presentation is available at http://www.pretrial.org/materials.html.





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ocer group’s moderate- and high-risk deendants ailed on pretrial release (no statistically signicant di-erence). Ater training, only 20% o the experimental ocer group’s moderate- and high-risk deendantsailed, compared to 42% o deendants supervised by the untrained control group (statistically signicant),

which shows, he said, that “we can actually impact outcomes.” Tat is especially important, Dr. Lowen-

kamp stressed, i how a deendant perorms under pretrial supervision is also somehow related to post-conviction outcomes.

In summary, Dr. Lowenkamp said, criminal justice systems must dene their bottom lines (which tell you what research to conduct and to consider); they must decide how pretrial ts into the larger justice system(i it does at all) in terms o continuity; and they must consider the existing research, generate their ownevaluation research, and ollow the evidence.

During ollowup questions to the panel, Mr. ravis noted that a recent Pretrial Justice Institute survey showed that there were roughly 400 pretrial programs, covering only 13% o the country, and only 42% o them used validated risk assessment instruments. He asked the panel i this should be viewed as encourag-

ing or discouraging. “Is the glass hal-ull, hal-empty, or do we have the wrong-sized glass?”

Dr. Goldkamp responded that having a good risk assessment instrument might make no diference atall, i it is not incorporated into the judicial decisionmaking process. His experience is that having judgesinvolved can either make or break reorm eforts.

Dr. VanNostrand stated that we should aspire to have validated risk assessments, but we must go beyondthat. In Mecklenburg, North Carolina, she said, it took a ull year to successully re-engineer the bail pro-cess because it required involving the entire criminal justice system. Nevertheless, ater a year, that crimi-nal justice system created a bail policy (with some sacrices and compromises) that everyone supported.

Mr. ravis then asked Dr. Lowenkamp what resistance he has aced in getting risk assessments validatedand whether risk assessment is the “Holy Grail or pretrial justice?” Dr. Lowenkamp noted that resistanceis typical, so it is important to get everyone on the same page. As to reliance on risk assessment to addressall the challenges to pretrial justice, he said that risk assessment is just the beginning o efective pretrial

justice, and an incomplete solution on its own.




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PANEL – SUCCESS AT THE LOCAL LEVEL Moderator: Arthur Wallenstein, Director, Montgomery County Department of Corrections and Rehabilitation,Rockville, Maryland.

Panel Participants: Bart Lubow, Director, Juvenile Justice Strategy Center, Annie E. Casey Foundation,Baltimore, Maryland; Seth Williams, District Attorney, Philadelphia, Pennsylvania; Susan Weld Shafer ,Director, Pretrial Services Agency, Washington, D.C.; Cathy L. Lanier , Chief of Police, Metropolitan Police Department of the District of Columbia; imothy R. Schnacke, Criminal Justice Planner/Analyst, JeersonCounty Justice Services, Golden, Colorado.

Many jurisdictions have implemented evidence-based pretrial strategies and have experienced posi-tive results. During this session, the panelists presented results from their jurisdiction’s pretrial eorts,focusing specically on building alliances and partnerships, implementing evidence-based practices, andcollecting data and measuring program outcomes. As in 1964, eorts that illustrate “a better way” are

encouraging to jurisdictions only now beginning to move toward more eective pretrial justice.

As he introduced the panel, Mr. Wallenstein recalled a 1999 meeting convened by Attorney General Janet Reno concerning persons with mentalillness in the criminal justice system, which brought that particular issue tolight, and which spurred a number o advancements and improvements inthat area. He noted that the topic o reentry has recently seen similar momen-tum, and now the topic o pretrial justice seems to be gathering signicantinterest. Nevertheless, he said, what we ultimately do during this Symposiummust be translated into understandable operating principles that can be usedat the local level.

For example, he noted, understanding the research literature, which shows that inmate length-o-stay primarily drives jail populations, could help local jurisdictions to engage process elements to reduce averagelength o stay by a raction o a day and thus signicantly drive down overall jail populations without usingearly releases. In pretrial justice, then, a key point is similarly “taking the research and translating it down tothe local level.” Moreover, he stated, the pretrial process is seemingly “low-hanging ruit,” carrying none o the political veneer o high-prole sentencing issues, and with increasingly diminished costs. In the end, hesaid, i this Symposium can create the same kind o interest in pretrial justice that other, similar symposiumshave created or other issues, “then this meeting will have been enormously successul.”

BART LUBOW

Mr. Lubow described the Annie E. Casey Foundation’s decision in the 1990s to ocus on juvenile justice re-orm by addressing the issue o overreliance on secured juvenile detention. Te Foundation’s Juvenile Deten-tion Alternatives Initiative ( JDAI), he said, was really the “grandchild” o the adult pretrial justice movement,as it relied on the cornerstone innovations o adult bail reorm to inorm its work with juveniles. JDAI issomewhat diferent, though, in that its eforts have been comprehensive, addressing a wider array o systemicissues beyond merely implementing better screening techniques and conditional release options.




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Mr. Lubow explained that JDAI is now the most widely replicated juvenile justice reorm project in thecountry, with a presence in 33 states (it will be close to 40 states by the end o the year) and with “ex-tremely promising” results, including data showing that the use o secure juvenile detention in partici-pating jurisdictions is down an average o 42 percent since the strategies were introduced—and with no

reductions in public saety measures. A urther benet, he stated, has been a reported 35-percent reductionin juveniles sent to youth corrections ollowing conviction in the sites implementing JDAI. Tose who areinterested in this topic, he stated, can go to the “JDAI Help Desk”23 or literature, inormation about JDAIsites, and sample documents.

In thinking about the next 50 years, Mr. Lubow concluded, we must answer the questions, “[w]hy is it,that in the atermath o the hopes o the bail reorm movement, we entered the era o mass incarcera-tion,” and “is there anything to learn rom the recent experiences o JDAI that might make a diference?”He then ofered the ollowing two points: First, he said, oten we have conused programmatic innovation

with genuine system reorm, but it is clear that programmatic innovation itsel does not necessarily pro-duce the results we desire. Second, he stressed, the JDAI experience has shown that collaborative planning

will produce more “wins” than individual actions not necessarily embraced by the entire system.

SETH WILLIAMS

Mr. Williams discussed his numerous eforts aimed at achieving pretrial justice in a jurisdiction o roughly 1.5 million residents, and in an oce thatprosecutes as many as 75,000 to 80,000 cases per year. Previous prosecutors’“get tough” punitive policies had led only to crowded detention acilities, hesaid, with no corresponding increase in public saety. Moreover, those policiesdid nothing to solve system ineciencies. Mr. Williams explained that his“success,” in the orm o dramatic changes that he made in his oce, can beattributed to three things: (1) given a new prosecutor, people in his city were

willing to reconsider the prosecutorial role; (2) the Philadelphia Inquirer haddone a lengthy series o articles on the criminal justice system, portraying itas “broken”; and (3) the sufering economy created a need or collaboration toaddress systemic criminal justice issues.

Mr. Williams emphasized his belie that “certainty” o punishment was more important than “severity” o punishment and that being “smart on crime” was more important than just being “tough.” Tus, he lookedor best practices in every area, including pretrial, he said, and ended up (1) improving his charging unitby having it take a more proactive role in assessing charges and assisting with bail setting; (2) reducing thecase processing time between arrest and sentencing; (3) changing the oce practices concerning pleas;(4) increasing diversionary programs; and (5) changing policies concerning prosecuting low-level drug

ofenses. Being smart on crime, he said, does not mean being sot on criminals, but it does mean makingmeaningul attempts to prevent crime, to better serve the victims o crime, and to reduce recidivism. Inthe end, he stated, “Tere has to be a greater role or the district attorney . . . a role in pretrial justice, and Ithink that we can make the greatest changes, systemic changes, that both make the society saer and betterserve deendants, and as a byproduct, save money by having a much more ecient pretrial system.”

23 Te website or the JDAI Help Desk is ound at http://www.jdaihelpdesk.org/Pages/Deault.aspx.


http://www.jdaihelpdesk.org/Pages/Default.aspx

http://www.jdaihelpdesk.org/Pages/Default.aspx




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SUSAN WELD SHAFFER

Ms. Shafer began her presentation by explaining that the D.C. system’s non-reliance on money bail andability to largely ollow the ABA Criminal Justice Standards on Pretrial Release is due signicantly to achange in its statute. Te statute that was in efect during the 1970s and 1980s contained many impor-

tant provisions, including a presumption o release under the least restrictive conditions and a meaningulpreventive detention section, she said, but D.C. was still using money bail in many cases. Soon the crimi-nal justice system collectively recognized that the courts would continue to use money so long as it wasallowed. Accordingly, she stated, various system ocials, including the prosecutors and public deenders,got together and proposed a change in the statute to read that a nancial condition could not be imposedto protect the public, and i a nancial condition is imposed to reasonably assure court appearance, it mustnot result in the preventive detention o the accused. Tat one line, she explained, essentially means thati money is used, it must be set in an amount that the deendant can meet. “Tis is critical to the successo the eradication o money in the District o Columbia,” she said. “It is really the single most importantreason that . . . money has disappeared rom our system.”

Ms. Shafer noted that another important statutory provision states that the Pretrial Services Agency shallsupervise only non-surety bonds, which, she said, gives judges the ability to use a surety bond i they wish.Currently, however, most judges preer the assessment and supervision techniques o the Pretrial ServicesAgency over those ofered by the commercial bail bondsmen.

Ms. Shafer then recounted key agency statistics.24 Te D.C. Pretrial Services Agency has one o thehighest pretrial release rates in the country, she said, at about 85%, which is typically secured within 24hours ater arrest. But despite this high release rate, she noted, 88% o those released make all scheduledcourt appearances, and 88% complete the pretrial release period without new arrests (with only 3% o deendants re-arrested or elonies, and 9% or misdemeanor violations). Ms. Shaer cited ve reasonsor the District o Columbia’s ability to accept the ambitious statutory provisions and, ultimately, or this

“success” at the local level: (1) the Pretrial Services Agency’s ability to provide accurate inormation aboutdeendant risk to the court; (2) prosecutors making quick charging decisions (so that risk can be based on“strong” charges actually led, rather than on charges at arrest); (3) deense counsel being present at rstappearance; (4) judges making appropriate and transparent decisions, ocusing on responses to the indi-

vidual risk actors; and, (5) all system actors committing to tracking results through the criminal justicecoordinating council.

Not having to “mess” with money, she said, has allowed the District o Columbia to better use evidence-based practices to determine individualized, diferential supervision techniques, to work on pretrialdiversion eforts, and to better attain due process or deendants. “It’s through collaboration, it’s throughinormation sharing, and it’s through looking at data . . . [and] I think our model can work or anyone in

the criminal justice system,” she stressed. Overall, she concluded, an up-ront investment similar to theinvestment made in D.C. “pays of in terms o achieving airness, protecting the integrity o the judicialprocess and the saety o the community, and providing overall cost savings or those expensive jail beds.”

24 A detailed case study, titled e D.C. Pretrial Services Agency: Lessons from Five Decades of Innovation and Growth,is available on the Symposium website at http://pretrial.org/Reports/Pages/deault.aspx.




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CHIEF CATHY L. LANIER

Chie Lanier noted that inormation sharing is dicult among justice sys-tem agencies but it is important to any endeavor that seeks to improve pre-trial justice. She said that the inormation shared between the D.C. Pretrial

Services Agency and the Police Department has been crucial to her work oncurrent, pressing criminal issues such as reducing violent crime. She stated,“[w]e have reduced violent crime and homicides here in Washington last

year to the lowest level we’ve seen o homicides since 1963 . . . and I credita lot o that to the work that’s been done by the Pretrial Services Agency.”Now, she added, with the big issue being gang retaliation, the Pretrial Ser-

vices Agency helps to avoid urther violence and protect the public by assist-ing the police in reacting more quickly and ocusing on the most violent andrepeat ofenders. Ongoing communication and collaboration is essential, she

said, and because so many jurisdictions are acing the same challenging budget issues, it only makes senseto ocus resources on the most violent, dangerous, repeat ofenders when it comes to identiying whom to

detain – those roughly 5 to 6 percent o deendants who are creating 80 percent o the problems.

In summary, Chie Lanier stressed that everyone in the system must continually commit to maintainingan efective pretrial services system and to developing a exible response to changes in criminal behaviorand other dynamic issues that afect risk. As a police ocer, she said, “I really can’t say enough about a[risk-based] system that allows us to strategically hold those who create the most problems in our com-munity and who are the most dangerous.”

TIMOTHY R. SCHNACKE

Mr. Schnacke described two eforts at attaining pretrial justice in his local jurisdiction, both o which

came out o the collaborative work o the jurisdiction’s Criminal Justice Strategic Planning Committee.25

Te rst, the Jeferson County Failure to Appear Pilot Project, used a controlled experiment to demon-strate that calling deendants to remind them o their court dates either beore or ater those court datescan reduce a jurisdiction’s ailure-to-appear rate by one-hal or better or certain deendant populations.

Te county’s resulting Court Date Notication Program continues to improve its court appearance rates,he said, while expanding the program to include more deendants and more serious cases.

Te second project, the Jeferson County Bail Project, is a good example o a jurisdiction educating itsel on legal and evidence-based practices in the administration o bail, collaboratively discussing the research,and then making and monitoring agreed-upon improvements. Te process has taken 4 years, includingtwo pilot projects designed to collect original research, he stated, but the overall signicance o the en-

deavor is illustrated by the ollowing improvements in a county that was previously “immersed” in the tra-ditional money bail system: (1) eliminating the monetary bail bond schedule based on charge alone (in itsplace is now a process document, which uses guiding principles supporting risk-based, individualized baildeterminations with less emphasis on money); (2) holding weekend advisements; (3) having deendantrepresentation at rst advisement; (4) relying less on secured bonds and commercial sureties; and (5) hav-

25 Both projects are summarized in more detail in papers submitted to the Symposium and may be ound at http://pretrial.org/materials.html.


http://pretrial.org/materials.html







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ing more open discussions about deendant risk with an emphasis on pretrial release under least restrictive,mostly nonnancial conditions. What we learned, Mr. Schnacke said, is that “you don’t need money tohelp protect public saety and increase court appearance rates and, in act, money just gets in the way. All

we learned about money is that it keeps otherwise manageable deendants in jail.” Generally, he conclud-

ed, the county learned that even major improvements are possible at the local level. Education about thelaw, the social science research, and the best practice standards on pretrial release, however, is perhaps thebiggest key to success. With that education, he stated, “jurisdictions can make signicant improvementstoward pretrial justice that the entire criminal justice system can embrace.”




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REMARKS FROM THE HONORABLE ERICH. HOLDER, JR., ATTORNEY GENERAL, U.S.

DEPARTMENT OF JUSTICE Mary Lou Leary, the Principal Deputy Assistant Attorney General for the Oce of Justice Programs, introduced Attorney General Eric Holder, “the man who is leading the Department of Justice’s eorts in pretrial justice”—atopic, she said, that the Attorney General “stands for . . . cares about . . . and what he will ght for.” His remarksare reproduced here in their entirety.

ATTORNEY GENERAL ERIC HOLDER, JR.

Tank you, Mary Lou Leary, or your kind words, or your years o service tothe Justice Department, and or the extraordinary leadership that you—andAssistant Attorney General Laurie Robinson—are providing to the Oceo Justice Programs. You and your team have done a great job o bringing so

many critical partners together or this symposium.

It’s a privilege to join with top ederal ocials; members o the bench and o the bar; ederal, state, and local law enorcement and corrections ocers; jailand prison administrators; victims; prosecutors; ormer deendants; and advo-cacy organizations as we examine, discuss, and—ultimately—work to improvethe state o pretrial justice in America.

Your insights and expertise are essential to this work. I want to thank each o you—especially imMurray, Judge ruman Morrison, and their colleagues at the Pretrial Justice Institute—or your partici-pation. Like im and Judge Morrison, many o you have been on the ront lines o eforts to strength-

en and reorm the pretrial process or decades. And your work has helped to ensure airness, eciency,and public saety.

But—as you’ve discussed this morning—we have much more to do. Tis symposium marks an impor-tant step orward in what I know—and what I pledge—will be an ongoing conversation about how wecan achieve sae and air pretrial release and diversion practices in our communities—and, in so doing,make our justice system both more efective and more ecient.

As extraordinary as this gathering is, it’s important to note that it is hardly unprecedented. Nearly hal a century ago, our nation’s 64th Attorney General, Robert Kennedy, launched the national dialogue

we’re extending today when he convened the rst-ever National Conerence on Bail and Criminal

Justice here in Washington.

Tat landmark gathering helped to raise awareness about the need or pretrial justice reorm, and tousher in a wave o meaningul changes—most notably, the Federal Bail Reorm Act o 1966, whichconstituted the rst major restructuring o the ederal system since the year George Washington wassworn in as president.





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Beore Robert Kennedy’s historic conerence, there was limited understanding about the cost andpublic saety benets o allowing or the release o deendants on their own recognizance, pendingtrial. And ew states had established such policies. But soon ater Attorney General Kennedy helpedto shine a light on this issue, there was a urry o activity in state legislatures nationwide as proposals

were ormulated, considered, and implemented. By 1999, in one orm or another, virtually every statehad put these policies into efect.

Policymakers, law enorcement ocers, and judges across the country helped to design appropriateprocedures to detain without bail those deendants who were deemed too dangerous or release—or

who posed a ight risk—while at the same time saeguarding due process and civil rights. oday—aterdecades o study, analysis, and cooperation—there is no doubt that, compared to Kennedy’s time, cur-rent pretrial release and diversion programs are not only more efective, but more just.

And yet—serious problems, as well as signicant ineciencies, remain.

As we speak, close to three-quarters o a million people reside in America’s jail system. When they aresent home or sentenced to prison, they will cycle out, and others will cycle in—so that, by the end o the year, 10 million individuals will have been involved in nearly 13 million jail admissions and releases.

Across the country, nearly two-thirds o all inmates who crowd our county jails—at an annual cost o roughly 9 billion taxpayer dollars—are deendants awaiting trial. Tat’s right, nearly two thirds o allinmates.

Many o these individuals are nonviolent, non-elony ofenders, charged with crimes ranging rompetty thet to public drug use. And a disproportionate number o them are poor. Tey are orced toremain in custody—or an average o two weeks, and at a considerable expense to taxpayers—because

they simply cannot aford to post the bail required—very oten, just a ew hundred dollars—to returnhome until their day in court arrives.

Tis link between nancial means and jail time is troubling in its own right. But it’s compounded by the act that many inmates become ineligible or health benets while they’re in jail—imposing anadditional burden on taxpayers when they’re released, and oten are orced to rely on emergency roomsor even the most routine medical treatments.

Now, the reality is that it doesn’t have to be this way. Almost all o these individuals could be releasedand supervised in their communities—and allowed to pursue or maintain employment and participatein educational opportunities and their normal amily lives—without risk o endangering their ellow

citizens or eeing rom justice. Studies have clearly shown that almost all o them could reap greaterbenets rom appropriate pretrial treatment or rehabilitation programs than rom time in jail—andmight, as a result, be less likely to end up serving long prison sentences.

But, within the connes o the current system, we too oten nd ourselves with ew, i any, viable alter-natives to incarceration.




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Tis is where today’s conversation begins—and why this symposium is so important. By competently assessing risk o release, weighing community saety alongside relevant court considerations, and en-gaging with pretrial service providers—in private agencies, as well as in courts, probation departments,and sherif ’s oces—we can design reorms to make the current system more equitable, while balanc-

ing the concerns o judges, prosecutors, deendants, and advocacy organizations. We can help thoseserving on the bench make inormed decisions that improve cost-efectiveness and preserve saety needs, as well as due process. And we can spark, as Robert Kennedy did, not only a vital discussion—but unprecedented progress.

I’m proud to report that, already, the Department o Justice is working to support pretrial services—and evidence-based decision making—in jurisdictions across the country. ogether with our partnersat the Pretrial Justice Institute and the National Association o Counties, we’re providing guidance toelected ocials at the local level, and soliciting perspectives rom experienced pretrial managementproessionals. We’re examining new ways to ensure that risk assessment is an integral part o the con-

versation. And, to that end, we’ve published a report—based on the research and recommendations o

experts rom across the country—on how to improve our capabilities and manage deendant risk whenit comes to detention and release decisions.

At the same time, we’re working to improve reentry policies, so we can have an impact on both endso the process—rom pretrial justice, to the smooth reintegration o those we release rom custody.In January, I chaired the rst meeting o the Interagency Reentry Council, composed o seven Cabi-net Members and other top Administration ocials—which, last year, awarded almost $100 millionunder the Second Chance Act to support substance abuse treatment, employment assistance, housing,mentoring, and other reentry services. In total, we now support some 250 reentry programs, and havelaunched rigorous evaluations to measure the degree to which they reduce recidivism.

Tere’s no reason why we can’t—or shouldn’t—adopt a similarly broad-based approach to the pretrial justice system. But, with ederal, state, and municipal resources in high demand and short supply, thesimple truth is that government simply can’t solve these problems alone. We need to engage key part-ners and innovators across the country to guide our eforts, to bring an expanded network o stakehold-ers to the table, and to push or responsible reorm.

So, to be blunt—we need your expertise. We need your ideas. And we need your help.

Our discussions must be grounded in rational and transparent risk assessments—built on evidence-based tools, and predicated on the presumption o innocence—but ever mindul o the need to keepour neighborhoods sae.

Each o you can play a key role in this efort. You can help us nd ways to support the growth o pre-trial service agencies and diversion programs in the more than 300 jurisdictions where they already ex-ist—and encourage their creation where they do not. You can ght to ensure that, or every deendant

who enters the system, our judges have access to the best inormation possible—along with a range o supervision and service options, as well as sound guidelines to inorm their decisions.




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And you can broaden our engagement with other experts on the ground, raising the prole o this work—and igniting, once again, a movement or meaningul change.

Te call or such a movement was rst issued nearly hal a century ago, at the very rst gathering o

this kind, when Robert Kennedy challenged this nation, “to see to it that or the poor man, the word‘law’ does not mean an enemy, a technicality, an obstruction. Let us see to it that law, or all men, means

justice.”

Tis is the mission, the legacy, and the cause that we now must carry orward.

As we rededicate ourselves to this work, I can’t help but eel optimistic about where we’ll arrive—and what we will achieve—together. Not only do I look orward to hearing about the discussions that you will have—and the recommendations that you will develop—during this symposium, I look orward toour continued partnership, our continued progress, and our continued pursuit o security, opportunity,and justice or all.

Tank you.




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LUNCHEON SPEAKERSTe Honorable Bruce Beaudin, Senior Judge, Superior Court, Washington, D.C.; Te Honorable Ronald Weich,

Assistant Attorney General, Oce of Legislative Aairs, U.S. Department of Justice; Kenneth Feinberg , Feinberg

Rozen, LLP, and Administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund.

During the working lunch, Assistant Attorney General Ronald Weich and Kenneth Feinberg oeredhistorical perspectives on pretrial justice, both having been key advisors to the late Senator ed Kennedy,as well as their own insights on today’s justice system.

Introducing the lunch speakers, Judge Beaudin briey traced the recent history o bail and pretrial justice, emphasizing the need or judges to take responsibility or learning about the subject o bail andollowing the mandates o the U.S. Supreme Court opinion in Stack v. Boyle , 342 U.S. 1 (1951), whichstated that pretrial release decisions be based upon the risks posed by each individual deendant.

RONALD WEICHCalling the current gathering “historic,” AAG Weich asked Symposium participants to provide recom-mendations and to give the Justice Department the tools that it needs to help jurisdictions across thecountry. Although ederal aid to state and local agencies is oten on the “chopping block,” he stated thathe is committed to including the recommendations rom this Symposium in his own work with Congress.Having worked with Daniel Freed (a pioneer in 1960s bail reorm) and with Senator ed Kennedy on bailreorm issues in the 1980s, AAG Weich said that he learned much about the need to improve a systemo bail administration that he witnessed rst-hand as a young New York District Attorney—a system in

which deendants without money were sent to jail, lost their jobs, and were unable to adequately assist with their deense.

KENNETH R. FEINBERG

In his remarks, Mr. Feinberg drew parallels between his current work in civil justice and the work being discussed by Symposium participants. Tree commonthemes, he noted, were: (1) discretion; (2) transparency; and (3) prediction (whathe called “the rst cousin” o numbers one and two), each o which is important,but each o which contains its own dangers in implementation. Implementingpretrial services in a time o shrinking budgets “encourages creative thinking,” hesaid, but attaining a proper balance between criminal process and civil libertiesrequires such thought.




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ANSWERING THE CHALLENGES – BREAKOUTSESSION SUMMARIES

Moderator: Cherise Fanno Burdeen, Chief Operating Ocer, Pretrial Justice Institute.

Panel Participants: Kim Ball , Senior Policy Advisor for Adjudication, Bureau of Justice Assistance, U.S.Department of Justice, Washington, D.C.; William Dressel , President, National Judicial College, Reno, Nevada; Elaine Nugent-Borokove, President, Justice Management Institute, Denver, Colorado; Gwyn Smith-Ingley, Executive Director, American Jail Association, Hagerstown, Maryland.

During the afternoon breakout sessions, Symposium participants met separately in four groups todevelop recommendations for improving pretrial justice in America. o the extent possible, the small groups were divided into combinations of various constituencies—such as law enforcement, county gov-ernment, victims and victims’ representatives, or private funders—to allow each perspective a meaningful voice. Pretrial Justice Institute Chief Operating Ocer Cherise Fanno Burdeen tasked the groups with

making recommendations for moving forward, and with developing action steps for reaching the groups’collective goals. Te recommendations are presented at the end of this report.





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PANEL: THE NEXT 50 YEARS Moderator: Alex Busansky, President, National Council on Crime and Delinquency, Oakland, California.

Panel Participants: Te Honorable ruman Morrison, III , Senior Judge, Superior Court, Washington, D.C.;Te Honorable Laurie O. Robinson, Assistant Attorney General, Oce of Justice Programs, U.S. Department of Justice; Cynthia Jones, Associate Professor of Law, American University, Washington College of Law,Washington, D.C.; Michael Jacobson, President and Director, Vera Institute, New York, New York.

In this closing panel, presenters discussed how lessons from the past 50 years could inform future pretrial justice strategies and policies.

Mr. Busansky introduced the nal Symposium panel, which addressed the important question o whatmust be done in the uture to address persistent issues o pretrial justice.

THE HONORABLE TRUMAN MORRISON, III

Judge Morrison ocused his comments on the overreliance on money bail. “What has the last 50 years taught us that might inorm pretrial

justice strategies in the uture?” he asked. “First and oremost, that na-tional pretrial decisionmaking practices will not meaningully changeas long as America continues to rely on money bond.” He went onto state that in the end, no matter what we have learned about better

ways to help judges inorm the decision o pretrial issues, i money bonds are there, judges are going to continue to use them. I money bonds are there, prosecutors are going to continue to ask or them. I money bonds are there, deense attorneys will requently continue to

end up arguing about nothing more than amounts. Potentially danger-ous people will continue to buy their way o jail or be improperly incapacitated without the process thateven they are due. And low‐risk persons will remain incarcerated pretrial just because they are poor.”

I judges are allowed to set “high” money bonds, he asked, what chance is there that they will take the timeto use a proper preventive detention process? Likewise, i we implicitly approve o “low” money bonds,

why should judges worry that those low amounts might unnecessarily detain deendants? Money bail, hestated, is “the durable enemy o law-based and rational pretrial policy,” causing untold collateral damage inthe orm o unnecessary and likely unconstitutional pretrial detention, and “all the more indeensible since

just, air, and efective public policy alternatives are today readily at hand.” Judge Morrison noted that jurisdictions such as the District o Columbia have shown that the elimination o money bail is not some

utopian dream, and there is no reason to believe that the D.C. experience cannot be replicated. In the end,he said, we must admit that with money bail we have been mistaken in our thinking. “Until we can cometo accept our mistake, and reject money once and or all as a proper dynamic o our pretrial decisionmak-ing, our true reorm successes will inexorably be limited in scope and temporary in duration.”

D

a v i d Y . L e e f o r P u b l i c W e l f a r e F o u n d a t i o n




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THE HONORABLE LAURIE O. ROBINSON

Based on her reading o the proceedings rom the 1964 Conerence, AAG Robinson observed that “ournation has been slow to address these very considerable challenges. Bail reorm has been very much anevolutionary, not a revolutionary process. Even today, a hal-century removed rom the rst bail coner-

ence, ewer than 1,000 o the 3,000 counties in the United States benet rom services provided by some300 pretrial programs.” Nevertheless, she stated, even in times o scal challenges, there are certain con-crete ways to create a smarter, more efective system o justice, which involves “taking the guess work outo the pretrial process and replacing it with sound, evidence-based decisionmaking.”

Te key to this, she stated, is to ocus on evidence-based practices and approaches, such as individualizedassessments o deendant risk through cost-efective pretrial services agencies using appropriate and e-ective validated risk instruments instead o bond schedules. Also, we can look to “success stories,” such asthe District o Columbia’s and other local jurisdictions’ evolution to an evidence-based culture, to serve asmodels or the rest o the country. Finally, she stressed, we need education (through many means, includ-ing technical assistance and programmatic training) to overcome a pervasive lack o understanding about

even basic pretrial issues. In the end, she said, we must be persistent and diligent in attempting “to instillin the system an evidence-based mindset—one in which reliable data, rather than politics or gut eel-ings—orm the oundation or action.”

As she stressed in her concluding her remarks: “We need to keep going. We need to make sure we’re col-lecting the right data to help local decisionmakers determine what works best and with whom. We needto strengthen research on which supervision modalities work best when matched with specic risk actors.And we need to highlight practices that work—especially with regard to costs and outcomes—so that

jurisdictions have a solid base o experience to work rom.”

PROFESSOR CYNTHIA JONES

Proessor Jones stressed the need to recognize and address the issue o racial disparity in any uture discus-sion o pretrial justice.26 “Tere is no just way or us to discuss the issue o reorming pretrial justice with-out discussing racial justice,” she stated, and “to divorce the two would be doing a disservice.” Research hasalready documented signicant disparities (controlling or other variables) in detention and bail amountsbased on race that are not limited just to the traditional black/white comparisons—even though, she said,there is no question that being black makes one twice as likely to be preventively detained. Other racialgroups, such as Native Americans, have the same issues o over-detention and over-use o high money bailleading to detention. As another example, she noted, one national study ound that “being Hispanic is thesingle best indicator o unavorable pretrial release decisions.” Overall, the results o this and other studiesshow the same thing: “Racial disparities persist in the pretrial justice system, and need to be addressed.”

Proessor Jones noted that the ABA’s Racial Justice Project is attempting to remedy racial disparity by creating policy changes, through training, guidelines, and standards, that can eliminate racial disparity inpost-conviction practice, but much o that work translates to pretrial justice.

26 In her presentation, Proessor Jones reerred to two articles that have been posted on the Symposium website:Stephen Demuth, Racial and Ethnic Diferences in Pretrial Release Decisions and Outcomes: A Comparison o Hispanic, Black, and White Felony Arrestees, Criminology 41(3) (2003): 873–908; and raci Schlesinger, Racial andEthnic Disparity in Pretrial Criminal Processing, Just. Quarterly 22(2) (June 2005): 170–192. Both are available athttp://pretrial.org/materials.html.






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Racial impact, however, should not automatically be equated with racism, she stated. Most decisionmakingappears not to be racist; decisions, instead, appear to be benign, albeit leading to signicant racial impact.Nevertheless, she concluded, [u]ntil we begin to dissect, examine, and validate the kinds o actors that wetake into account, and examine whether they are having a racial impact, I don’t think that we are going to

have true pretrial justice.”

MICHAEL P. JACOBSON

Mr. Jacobson emphasized that while the use o data and evidence, and the use o arguments about im-proved justice, eciency, airness, and disproportionality, are all necessary and important to pretrial justice,“they are not remotely sucient to do any sort o long-term signicant reorm.”

Tere is perhaps no greater gap between what we know and what we do than in the area o criminal justice, he stated. Unlike perhaps in the 1960s, criminal justice is now a “hyper-political” topic, requiringan “explicit political and scal strategy [combined with a public opinion and public education strategy]to push this issue orward.” oday represents “a moment,” he said, but there must be a commitment rom

those outside this room, including both private and public unders, and other groups not normally in-cluded in these eforts (such as business and aith-based groups) to create this larger political and scalnational strategy that is capable o bringing local reorm.

Mr. Busansky ended the panel discussion by asking the question, “I money is the problem, then what isthe ‘charge’ o the Symposium?” What can people do? AAG Robinson answered that she believed thisSymposium could act as a catalyst to create a local strategy that could be united with a ederal strategy that ocuses on pretrial justice and airness. Professor Jones stressed the need to analyze data (includ-ing data on racial disparity) and to better inuse data into any discussion o pretrial justice.Mr. Jacobson noted that combining the larger, philosophical issues with practical issues can be a powerul tool ormaking progress; nevertheless, he stated, we must spend time to educate stakeholders on all o the issues.

And nally, Judge Morrison observed that “there is no constituency in America or poor people charged with crime.” Accordingly, he said, whenever we talk o eciency, efectiveness, and community saety, weshould be equally mindul that unnecessary pretrial detention is an “immense human tragedy” and that“we should never apologize or . . . talking about airness.”




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CLOSING REMARKS e Honorable Laurie O. Robinson, Assistant General, Oce of Justice Programs, U.S. Department of Justice, introduced e Honorable James M. Cole, Deputy Attorney General, U.S. Department of

Justice. Timothy J. Murray of PJI oered the nal remarks of the Symposium.

Deputy Attorney General Cole began his closing remarks by thanking Sympo-sium participants or providing ideas and recommendations to help the Depart-ment make the pretrial process smarter and more efective. “You are the ones

who wield the greatest inuence in this area. You are the ones to whom peoplelisten. And I am thankul and grateul that you have allowed us to actually lever-age your credibility or our own selsh purposes.”

His own work on the American Bar Association’s Standards Committee, Mr.Cole stated, has shaped his philosophy o a justice system based on airness and

eciency. Moreover, it continues to guide him in his work to this day, as “[t]heconcept o ensuring air and impartial administration o justice or all Americans is central to the missiono the Department o Justice.”

“We are seeing a growing number o these [pretrial services] programs throughout the country,” he said,“but we would like to see more. We need to make these innovative practices the rule, and no longer theexception.” Indeed, he stated, “a sound pretrial inrastructure is not just a desirable goal—it is vital to thelegitimate system o government and to saer communities.”

Decisions made during the pretrial stage must be evidence-based, he stressed. Tis means moving romcriminal justice systems making decisions based on intuition, custom, or a xed bond schedule, to systems

making decisions by using determinations o risk and saety that rely on data and individually based as-sessments. “In other words,” he concluded, “we need an evidence-based approach to pretrial justice thatrealizes the system’s ull potential.”

Mr. Murray closed the proceedings by noting that while the Symposium seemed to be a success—withinuential speakers making a strong case or the need to improve pretrial justice—its true success can only be judged over time. I years rom now the challenges that were raised during the two 2 days o the Sym-posium have been addressed, he said, then the Symposium will be seen as a watershed event. He notedthat it was up to those attending the Symposium to make sure that the issues o pretrial justice remainat the oreront o discussions. “Te time or you to listen to speeches is over,” he told the attendees. “Tetime or you to begin making speeches has just begun. Te time or you to sit through presentations is

over. Te time or you to include pretrial justice in every presentation you make to your constituent groupshas come.”





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RECOMMENDATIONS OF SYMPOSIUMPARTICIPANTS

Tere was a consensus among the participants at the Symposium that the pretrial justice systems in place

in jurisdictions across the country should have all o the ollowing eatures:

• Use o citation releases by law enorcement in lieu o custodial arrests or non-violent ofenses when theindividual’s identity is conrmed and no reasonable cause exists to suggest the individual may be a risk to the community or any other individual, or to be a risk to ail to appear in court.

• Eliminating the use o the automatic, predetermined money bail set with regard only to the arrest charge,and requiring all arrestees to be assessed or risk o rearrest and ight, prior to any pretrial release.

• Screening o criminal cases by the prosecutor’s oce beore the initial appearance to make sure that thecharge beore the court at that rst appearance is the charge on which that the prosecutor is movingorward.

• Presence o a deense counsel at the initial appearance who is prepared to make representations on the

deendant’s behal or the court’s pretrial release decision. • Presence o a judicial ocer at the initial appearance who has received thorough training on pretrialrelease decisionmaking, including on the laws that govern how the decisions are to be made and theresearch showing evidence-based decisionmaking practices.

• Existence o a pretrial services program or similar entity that:» Interviews all deendants who are in custody beore the initial court appearance; » Compiles the inormation that the court is required by law to take into consideration in making apretrial release decision;

» Assesses each deendant’s level o risk to be a danger to the community and to ail to appear in courtusing scientically validated risk criteria;

» Recommends to the court viable, least restrictive release options to address identied risks; and,

» Provides crime victims and others with mechanisms or reporting apparent violations o pretrial re-lease conditions.

• Availability and use o detention without bail or deendants who pose unmanageable risks to publicsaety.

Tese same eatures have been a part o the American Bar Association’s Pretrial Release Standards sincethey were rst promulgated in 1968. Participants recognized that simply pointing to those standards, andto the good results achieved by the jurisdictions that have moved to implement them, has not been su-cient to persuade most jurisdictions to adopt more than just a ew o these eatures, i any at all. Changingprevailing pretrial justice practices in this country requires changing the culture that supports those prac-tices. Tus, the recommendations that ollow seek to lay the necessary groundwork to change the culturethat believes current practices are delivering efective pretrial justice.

RECOMMENDATIONS FOR OJP

Participants elt that, as the convener o the national symposium, the Oce o Justice Programs is in aunique position to move the eld orward. Accordingly, several recommendations were made involving OJP.




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Establish a multidisciplinary Pretrial Justice Working Group.

It was the consensus o the participants that the current national momentum supporting pretrial justicereorm must not end with the Symposium but rather should advance as a result o the Symposium. A

working group o select multidisciplinary, inuential national leaders is a logical and essential ollow-up

to the Symposium. Tis panel should meet regularly, review, and synthesize the eforts underway by DOJ,private oundations, and others to advance pretrial justice. Te group should receive appropriate staf sup-port rom DOJ and publicly report on their work.

Provide regional pretrial justice symposium.

Participants elt the success o the national pretrial justice Symposium should be recreated at the state orregional level. In order to support change, local practitioners must have the benet o an agenda like thato the national Symposium that examines pretrial justice in the context o public saety, cost, and airness.

Tis would include conducting state or local data collection and analysis; legal analysis o state bail laws,administrative court orders or county resolutions; and a consensus-driven agreement on pretrial justice

system goals and a roadmap to achieving those outcomes.

Convene a judicial roundtable to develop a strategic approach to training and educating jurists

and judicial support systems.

Participants elt that judicial education and training are key to pretrial justice reorm, as undamentally and legally, judges set bail. As a result, there should be a national strategy to engage the judiciary at every level. Tis approach would involve working through a variety o venues—including state judicial educa-tors, associations o judges such as the Council o Chie Justices—to identiy a set o nationally respected

judges that can convene a meaningul dialogue on the issue. Supporting this roundtable would requirestang resources to conduct legal and social science data and inormation collection and synthesis. Tegoal would be to have this roundtable provide a roadmap or change.

Take full advantage of OJP’s communications assets by highlighting the need for pretrial justice

reform while showcasing best practices.

Te participants elt that pretrial justice reorm should be included whenever possible in the speechesgiven by department ocials as well as the publications, webinars, and other communications supportedby OJP. As many noted, educating stakeholders on the issues and problems acing pretrial justice is a pri-mary ingredient or pretrial reorm, and OJP is in a unique position to do so.

Demonstrate the effectiveness of pretrial justice best practices through a dedicated Bureau of

Justice Assistance grant program.

Such a program would not only underscore the importance o pretrial justice to OJP but would provideinterested communities the opportunity to acilitate change while serving as a model or others. Demon-stration sites would also serve as likely providers o pretrial data or the Bureau o Justice Statistics, whileproviding ideal opportunities or National Institute o Justice-sponsored research.




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Collect a comprehensive set of pretrial data needed to support analysis, research, and reform

through the Bureau of Justice Statistics.

Te Bureau o Justice Statistics should collect the data needed to quantiy the dimensions o pretrialsuccess and ailure. Tis would include expanding the current State Court Processing Statistics series

to incorporate the redesigned data collection instrument completed in 2009, as well as include data onmisdemeanors. Tis efort should be coordinated with the inormation technology technical assistance andinvestments provided to local jurisdictions by the Bureau o Justice Assistance.

Embark upon a comprehensive research strategy that results in the identication of proven best

pretrial justice practices through the National Institute of Justice.

Discussants agreed that little gold-standard, rigorous research has been conducted in this area and that work supported by NIJ will have the added benet o stimulating the interest o the criminal eld researchcommunity. NIJ should encourage applications to its various ellowship awards and open solicitations, as

well as ofer a ocused pretrial justice solicitation. Tis work requires a oundational discussion and explo-

ration with researchers at conerences such as the American Society o Criminology, the NIJ ResearchConerence, and others. It also would require an introduction o this work to the academic community insupport o thesis and dissertation work.

RECOMMENDATION FOR LEGISLATORS

Review proposed pretrial bills for their compatibility with the policies and practices for pretrial

release decision-making outlined by the American Bar Association in its Standards on Pretrial

Release.

Te law, proessional standards and science have demonstrated pretrial release decisions should be guidedby risks, not the deendant’s access to money, that money bail is not designed to and does nothing to ad-dress concerns or community saety, and that jurisdictions should establish a pretrial services unction to

provide inormation and viable options to the court in every case.

Participants were concerned about bills that have been introduced in recent years that serve to circum- vent the use o evidence-based pretrial risk assessment and supervision. Tese bills have, among otherthings, sought to: require that the courts set a nancial bail i the deendant is ound not to be an indigent;require the court to set a nancial bail i the deendant is charged with certain violent or other serious o-enses; and prohibit counties rom using their own unds to operate pretrial services programs. It is recom-mended that legislators review any bills governing pretrial release and detention policy or compatibility

with evidence-based practices, the law and standards o legal practice.

Introduce and pass bills that require commercial bail bonding for prot companies to report to the

court and to the appropriate licensing and regulatory authorities on bail bond forfeiture activities.

Tere was a consensus among the participants that very little is known about the bail bond oreitureactivities o commercial bail bonding or prot companies, and that without such inormation it is di-cult to determine whether these companies are being held accountable or deendants who have ailed toappear. Bonding companies should be required by law to report on the number o bails that have been or-dered oreited by the court, the ace value o each o these bails, the number o oreitures that have been




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paid, the amount that has been paid, and the number and ace value o oreitures that remain outstanding. Tis inormation should be publicly available through the regulatory agencies in each state.

County legislative bodies should ensure that any local ordinances pertaining to pretrial release

decisionmaking are compatible with the state law.Participants were concerned about the pressures being brought to bear on county government ocials torestrict non-nancial release options and maximize the use o nancial release through county action in

ways that stand in direct violation o state law. It is recommended that county ocials ensure all county ordinances are reviewed or compatibility with state law prior to their introduction.

RECOMMENDATIONS FOR STAKEHOLDER GROUPS

Stakeholder groups and constituent organizations should maintain a policy statement or

resolution calling for the reform of pretrial justice practices.

A common theme throughout the Symposium was that pretrial justice reorm could only succeed through

the collaborative mobilization o all stakeholders within jurisdictions. As evidenced by the AmericanCounty Platorm and Resolution on Pretrial Justice both issued by the National Association o Counties,as well as statements issued by the American Probation and Parole Association, American Jail Association,and American Council o Chie Deenders, stakeholders are bolstered by the support o their membershipassociations’ public positions. Other groups should ollow suit and all statements should be updated asevidence-based practices advance.

Stakeholder groups and constituent organizations should educate their members regarding

pretrial justice through conferences, publications, and trainings.

Participants recognized the importance o supporting the policy statements and resolutions o stakeholderassociations and constituent groups with education eforts or their members. Publications, presentations

at conerences, articles in newsletters and use o websites not only reinorce the message but also allow or specically tailored and operational inormation to be disseminated. Participants also believed thatstakeholder groups that have continuing education requirements, such as state and local bar associations,

judicial ocers, etc., include pretrial justice as a mandatory topic or receiving continuing education credit.

RECOMMENDATION FOR THE PHILANTHROPIC COMMUNITY

Convene a comprehensive philanthropic roundtable to identify areas that federal support

cannot address.

Te participants agreed that the involvement o the ull range o the philanthropic community investing incriminal justice reorm is essential to the success o pretrial justice reorm or at least three reasons. First,

the current and projected scal environment ofers limited nancial investment opportunity by the ederalgovernment. Second, it is important to show that the commitment to reorm is shared across a broaderspectrum o parties, beyond the ederal government. Tis means that philanthropic groups rom all sideso the political spectrum should at least come together to discuss the issue. And third, an uncoordinatedocus on a reorm efort can yield duplicative investments, or an over emphasis on one aspect o the issue.Participants hoped that such a philanthropic roundtable would result in a multi-year commitment to anational pretrial justice reorm strategy.



Examine state statutes relating to pretrial release decisionmaking and develop a Model Code.

Just as the 1964 Conerence was instrumental in moving Congress toward passing the Bail Reorm Acto 1966—the rst law to create a presumption o release on the least restrictive conditions, and to listthe actors that the court must consider in the pretrial release decision and the range o release options

available to the court—participants elt that this Symposium should lead states to examine their statutes. While many states did model their statutes ater the ederal Bail Reorm Act, many others have not. Ide-ally, the Model Code would contain the ollowing provisions:

• Prohibit the use o automatic, predetermined money bail amounts set with respect only to the arrestcharge that allow or the release o any deendant with the means prior to an initial appearance.

• Require the empirically validated, individual assessment o risk o each deendant prior to the initial ap-pearance in court.

• Provide or the imposition o proven and accountable conditions o supervision designed to mitigatemeasured risk o ight and/or crime while on release, or that results in detention.

• Prohibit the use o monetary bond or reasons o community saety.

• Authorize the preventive detention o certain deendants (modeled ater current ederal bail legislation)to provide an element o public saety protected by appropriate and required due process.

RECOMMENDATIONS FOR THE ACADEMIC COMMUNITY

Develop and seek funding for research proposals relating to pretrial justice.

Participants lamented the act that research on pretrial justice issues has drawn so little attention rom theacademic community, compared with other aspects o the criminal justice system. Te number o academ-ics who have shown interest over the past several decades has been limited to a ew, depriving the pretrial

justice eld o the rich range o scholarship that other areas o study have enjoyed. Participants elt, how-ever, that there is much to be learned in the pretrial justice area, such as understanding what conditions o

pretrial release work best or each population o deendants.

Prepare future practitioners and leaders to effectively address pretrial justice issues in a fair,

safe, and effective manner.

Te participants called upon law schools to include pretrial justice in their curricula and clinics. Collegesand universities should ensure that pretrial justice is included in their course oferings at the undergradu-ate and graduate levels. Te development o a college-level textbook ocused on pretrial justice was identi-ed as a crucial and easible product.

NSPJ Report 2011

Documents

Transcript of NSPJ Report 2011