Lose your job or lose your freedom?

Imagine that you were arrested on an alleged misdemeanor offense and the court has allowed your release from custody on a promise to appear (own-recognizance) to your scheduled court date. You work full-time, are the primary or only breadwinner of your family, and you live on a low-wage paycheck-to-paycheck basis. You’ve told your boss in advance that you have a mandatory court proceeding to attend and, based on that conversation, you now fear that your boss will fire you if you miss that day of work to attend court. As the day of your court hearing approaches, you must make a critical decision between attending court or attending work. No matter which one you choose, the consequences for not choosing the other are grave; if you miss work you will potentially get fired and struggle with meeting basic life necessities for you and your family, if you miss court an arrest warrant will likely be issued against you along with additional charges pursuant to your failure to appear (FTA).

The Problem

There is no empirical data in California that demonstrates how often individuals fail to appear as a result of fearing employer retaliations. There is also no empirical data to show how often individuals are terminated after they have missed work to attend a court hearing. This data may be difficult to obtain for two reasons: first, employer motives are challenging to track, and second, there is the possibility that employees do not tell their employers about their court dates for a variety of reasons.

A survey in Nebraska of about 8,000 misdemeanants from different counties found that “the highest-rated reasons for non-appearance reflect very practical, instrumental factors (e.g., “had scheduling [or work] conflicts.”) (pdf, go to page 24). The Bail and Release Work Group of Santa Clara County stated that individuals miss court appearances “for many reasons unrelated to a desire to avoid justice—including inability to miss work” (pdf, go to page 20). From both my personal observations in court and my interviews with professionals in the criminal justice system in Santa Clara County, it appears common for defendants to miss their court date out of fear that they will lose their job for missing work. (Class/personal interview with Public Defender Ms. Panteha Saban, 4/13/16. Email interview with pretrial service agent, 4/15/16.) So what if there was legal protection that would prohibit an employer from retaliating against an individual who gave advance notice and missed work in order to attend a mandatory criminal court proceeding? Continue reading “Lose your job or lose your freedom?”

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Another Tool in the Toolbox for Domestic Violence Pretrial Determinations

At the time of Laura’s death in 2013, her abusive ex-boyfriend, who was also her murderer, was out on bail awaiting trial for charges stemming from prior domestic violence attacks and threats. According to court records and family members, he previously had “allegedly beat her with a baseball bat, dragged her behind a car, strangled her until she blacked out on the floor and told her over and over how he would kill her if she ever left him.” This is one of various tragic cases we hear about each year. Alternatively, however, there have also been other cases where alleged abusers have been detained pretrial, have not been able to post bail either because it was denied or because they could not afford it, and after spending some time in jail had the charges dropped for a number of reasons.

Out of this wide range of cases there are special legal considerations at the pretrial stage for domestic violence cases due to the potential risk to the victim and the past or present association of the accused and the victim. Although our legal system in California recognizes that there must be extra precautions for the victims’ safety, in practice California does not have a validated evidence-based method to identify and manage the most dangerous domestic violence offenders while affording those others accused their due process rights during the pretrial stage. In this post I will describe the California procedures already in place when dealing with domestic violence cases, and recommend some evidence-based risk assessment tools that the courts and others involved can use. Continue reading “Another Tool in the Toolbox for Domestic Violence Pretrial Determinations”

What it takes: An innovative risk-assessment tool in Santa Cruz County

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.

Implementing Risk Assessment Tools: Benefits and challenges in Santa Clara County and Santa Cruz County

After taking a training on unconscious bias and its effect on decision-making, I became intrigued about validated risk assessment tools meant to offset this effect in pre-trial determinations. These tools have been adopted nationally throughout different counties. I will be comparing and contrasting Pre-Trial Services in Santa Clara County to the Public Safety Assessment Pilot program in Santa Cruz County and their use of validated risk assessment instruments. I then want to determine how the instruments are implemented and analyze to what degree judges deviate from the recommendations of these agencies and why. I want to observe whether the prosecutor influences the judge’s decision to deny or set bail at a certain amount and whether public defenders raise Eighth Amendment “excessive bail” challenges. In the midst of this process, I want to evaluate whether the financial circumstances of the accused are ever considered—in theory or in practice.

My name is Carlos Barba and I am a second year law student at Santa Clara University School of Law. I was born and raised in Watsonville, California, a city in the south part of Santa Cruz County, predominantly comprised of low-income immigrants. I’ve witnessed how our current bail system disproportionately affects low-income individuals and their families, which is why I am interested in criminal justice reform. My goal this semester is to provide new information about common bail practices and assess the effectiveness of these practices in order to influence policy.