Individuals accused of crimes will unsurprisingly wonder how it is that judges determine whether or not they should be granted bail and at what amount. After all, they haven’t been proven guilty beyond a reasonable doubt, and it is fair to assume that at this stage of the proceeding there is very limited information about them: their financial capacity, their community ties, or their housing and work situations. Judges are left with a difficult task in determining what the likelihood is that an individual who gets released will pose a public safety risk or fail to appear to his or her court date. Without more information, judges must either make these critical decisions in a subjective manner, based on experience and “gut feeling,” or strictly follow a set bail schedule without considering the defendant’s circumstances. Subsequently, many individuals who have a low flight and public safety risk may be detained pretrial on purely financial grounds, while high risk individuals who can afford the bail amount are released (pdf, go to page 5).
The consequences of the aforementioned approach have been dire both for society and those involved in the criminal justice system. At any moment, over 60% of the U.S. jail population is composed of pretrial detainees, including both low-risk and high-risk persons, and the estimated cost to incarcerate these individuals is $9 billion a year (pdf, go to page 5). In California jails, the average pretrial population is also about 60% of the total jail population (pdf, go to page 2). Moreover, research shows that detention of low-risk individuals makes them worse: when low-risk individuals are detained pretrial they are more likely to commit new crimes once they are released, receive longer sentences and more likely to miss their court dates. For individuals the repercussions of being detained pretrial, especially when they are low-risk, are grave since it can lead to falling behind on bill payments, missing school, losing their homes, losing their jobs, and becoming disconnected from their families and communities (pdf, go to page 15).
As a result, many at the forefront of bail reform are seeking new non-financial options to bail, and some are pushing towards objective evidence-based and cost-effective practices to help judges decide which individuals should be detained, supervised or released. Such practices include using validated risk assessment instruments that are supposed to accurately distinguish among high, moderate, and low-risk individuals to help judges make pretrial decisions based on the individual’s risk of reoffending or failing to appear to their court date. Currently, however, only about 10 percent of courts nationally use evidence-based risk-assessment instruments.
Among the places in California using these instruments is the Probation Department of Santa Cruz County through its Pretrial Services Unit. The Unit previously used the Virginia Pretrial Release Risk Assessment Instrument (VPRAI). A study comparing best practices in California states that the VPRAI examined a “defendant’s status at the time of the arrest as it relates to the current charges, pending charges, criminal history, residence, employment, primary caregiver and history of drug abuse.” Santa Cruz County, however, continues to reform its practices and has implemented a new risk assessment tool that is drawing attention nationwide. Counties, on the verge of applying or switching their risk assessment tools are interested in this tool’s success rates, operational efficiencies and implementation challenges.
The Probation Department in Santa Cruz County began the piloting of the Laura and John Arnold Foundation’s [LJAF] Public Safety Assessment-Court (PSA) on July 1, 2014. Unlike other risk assessment tools, the LJAF states that PSA only includes factors that are related “to a defendant’s criminal history and current charge [not] factors that could be discriminatory such as race, gender, level of education, socioeconomic status, and neighborhood.” According to LJAF’s research, the tool is just as predictive of risk without the controversial variables and is also time-efficient since the tool can be carried out without interviewing the accused.
About a year after implementing the PSA Court, the Santa Cruz Probation Department reported that the data was “still insufficient to complete a preliminary validation study.” Furthermore, it is difficult to analyze if it has helped in reducing pretrial detention population rates with the enactment of Prop 47 in October 2014 (Perez, 2016). While obtaining results from Santa Cruz County is difficult due to proprietary circumstances and concurrent legislation, there is valuable information for those interested in implementing the PSA Court in their counties.
The non-interview nature of the instrument has allowed Santa Cruz to increase by almost five times the number of pretrial assessments they conduct monthly (pdf, go to page 3). The length of time it takes to complete an individual PSA Court depends on the type of the case; it can range from five minutes with someone who has minimal history to twenty minutes for others who have more complicated cases (Perez, 2016). However, to minimize the potential for any errors, the pretrial services team has been working to reduce the rate in which an individualized PSA Court is completed (Perez, 2016).
According to Pretrial Supervisor Ms. Linda Perez, one of the most challenging components in Santa Cruz County was and continues to be getting others, such as judges, to accept this specific tool. Although receptive towards evidence-based practices, the challenge is because the prior tool the county relied on, the VPRAI (Virginia Pretrial Risk Assessment Instrument), “included more written information in the form of a narrative regarding the dynamic factors in the defendant’s life through information obtained in an interview” (Perez, 2016). Judges are now getting a different framework for the recommendations that does not necessarily include narrative information obtained through interviews or the same kind of focus on the current charge. The pretrial services team is finding ways to improve acceptance by presenting concise information about how the PSA Court operates to all involved in the process (Perez, 2016). In rare circumstances, “this obstacle has also been partially alleviated by the ability to include pertinent information at the bottom of the reports regarding mental health concerns, gang involvement, and other pressing issues” (Perez, 2016).
Additional challenges included modifying their electronic pretrial system to incorporate all the risk factors and inputting the outcomes of each assessment required by the Laura and John Arnold Foundation (Perez, 2016). According to Ms. Perez changing the system was a lengthy process that took about four to five months. Equally, inputting outcomes and keeping data for each assessment was more time-consuming for staff, since they previously used to keep data only on the defendants released under their supervision.
In terms of expenses, as part of the pilot process Santa Cruz County received substantial technical assistance, training and support, data analysis and oversight as well as the product itself at no cost (Perez, 2016). Although the tool itself will eventually be provided to agencies free of charge, if an agency is not part of the pilot program, getting the appropriate training and changing electronic data systems could be costly (Perez, 2016). There are no cost savings specifically through the use of the PSA Court (Perez, 2016).
The LJAF is not assisting the county anymore; however, they will get assistance to complete the full validation study. Santa Cruz County’s goal is a “75% concurrence rate; the ratio of released and detained defendants to the pretrial agency’s release and detention recommendations” (Perez, 2016). Santa Cruz County is hoping to complete a full validation study within a few months.
A common expression is that the justice system cannot keep up with technological and scientific advancements. This post is meant to both start the discussion around an innovative risk assessment tool and help others begin strategizing around potential challenges. While we wait for Santa Cruz County’s results, my next post will explore the possibility of using scientific data-driven risk assessment tools in the realm of domestic violence cases.