Background. Interested Allies and Funders Cherise Fanno Burdeen 3DaysCount TM A Strategy for Improving Pretrial Justice

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1 To: From: Subject: Interested Allies and Funders Cherise Fanno Burdeen 3DaysCount TM A Strategy for Improving Pretrial Justice This memo provides an overview of what PJI believes to be an organizing strategy for the members of the Pretrial Justice Working Group to act as force multipliers in making change at the state level. This strategy is called 3DaysCount TM. Background Our justice system currently operates like a complex maze, with too many entry points and too few exits. As a result, many people enter jail and stay in pretrial detention unnecessarily, which increases their chances of getting stuck in the maze. In fact, each year nearly 12 million people are booked into U.S. jails, mostly for nonviolent misdemeanors, and more than 60 percent of jail inmates are unconvicted largely because they are too poor to post even small money bond amounts. Even three days in jail can be too much, leaving low-risk defendants less likely to appear in court and more likely to commit new crimes because of the stress incarceration places on fundamentals like jobs, housing and family connections. Meanwhile, half of the highest-risk defendants go free by posting cash bail under laws that currently hinder judges ability to detain based on risk. The time is right for making commonsense and lasting change in criminal justice systems. President Obama has announced that justice reform is one of his final-term priorities and there is wide bipartisan support on the issue. States like New Jersey have taken bold steps to improve their pretrial justice systems, but most progress is being made at the local jurisdictional level. For example, the Bureau of Justice Assistance s Justice Reinvestment Initiative which works to improve state laws and reduce state level correctional spending has incorporated pretrial improvement in some of their county sites and the civil rights law group Equal Justice Under Law has achieved major wins challenging the constitutionality of money bail practices around the country. 3DaysCount TM aims to apply these kinds of recent victories to the state level, pushing commonsense pretrial justice toward critical mass nationwide. 1. The Pretrial Justice Working Group (PJWG) is a group of multidisciplinary stakeholders who have been meeting since 2011 to implement the recommendations from the National Symposium on Pretrial Justice

2 2 The 3DaysCount TM Solution 3DaysCount TM is a campaign to apply commonsense solutions to widespread pretrial justice challenges, making our country safer and ensuring the best possible outcomes for all. The campaign strives to help states: reduce unnecessary arrests that destabilize families and communities, replace discriminatory cash bail with risk-based decision-making, and enable transparent detention for the small number of defendants who pose a genuine threat to public safety. PJI will support 20 states by 2020, following the example of places like Colorado, Kentucky, New Jersey, Washington, DC, and dozens of other locales where updated state laws encouraged local jurisdictions to reliably implement smarter pretrial justice policies and practices. To meet the goals of the 3DaysCount TM campaign, PJI will leverage its relationships with partner organizations and funders in support of participating states to: Improve State Statutes and Court Rules For example, by reducing the severity of certain lowlevel offenses; encouraging cite and release practices, guided by risk; and replacing the use of cash bail with pretrial risk assessment Change State Constitutions Where necessary, constitutional changes can allow for preventive detention based on assessed risk and with due process Implement statewide evidence-based tools Introducing or refining objective pretrial risk assessment and supervision guidelines Any state can join and be one of the 20 states that will set a new national standard for pretrial justice. Some states are already making progress. Signing up for the campaign requires the commitment by a leader from one of the three branches of state government or a prominent state-based advocacy or stakeholder association (such as a state association of sheriffs, police chiefs, or county commissioners). There s no cost to joining 3DaysCount TM, but a state must be ready to make changes and report back on its progress. There will be varying levels of support offered, depending on the need of the state. 3DaysCount TM has two main parts: support for change-makers in participating states and a public education campaign.

3 3 1) The 3DaysCount Campaign: State Policy Change To reach the goal of seeing change in 20 states by 2020, PJI and PJWG partners will support efforts to improve statutes and court rules, update Constitutions, and implement evidence-based tools and risk management guidelines. PJI will oversee the development of foundational products that can be tailored for each state and serve as a hub and organizer, where our role is to diagnose and then triage support based on the state-specific theory of change and levers. We will support state-based advocates and state-level government champions, provide step-by-step training and assistance online, and use the latest in implementation science and behavior change to create an exciting and impactful initiative. PJI will use high-level measures for this campaign, rather than significant logic model data points. We will track a few big measures centered on a significant reduction in inappropriate and poverty-based pretrial detention. Some activities within support for participating states are: Statutes, Court Rules and Constitutions Analyzing and Drafting Language PJI will create a publication describing how to comprehensively assess a state s bail laws, court rules and case law. A second publication will include model language around the main elements of pretrial reform. Constitutional changes, in the form of voter ballot initiatives or perhaps voter initiatives in states that can affect policy through this measure, will require different but similar support. Petitions As a part of the campaign, PJI will run petitions in states to draw attention to the issues and demonstrate public support for change. Tailoring National Products to States (Story Bank, Ads and Polls) Our efforts will include work to create state-specific versions of the aforementioned national-level tools. We can work with states to develop a state story bank, a state-specific educational effort on money bail, and state-specific public opinion polls. Diagnosis of State Conditions and Plan Development PJI envisions 5 stages in 3DaysCount TM state campaigns, as follows: Stage 1 a qualified state representative expresses interest in 3DaysCount TM. Stage 2 PJI conducts a diagnosis of the state of pretrial justice within the state and makes a decision about acceptance of the state.

4 4 Stage 3 Once accepted, PJI and the state decide about the method and timing of announcement, the theory of change and level of support needed. Stage 4 PJI supports the state in planning activities, providing some direct training and technical assistance, and organizing the support of partner organizations, depending on the level of funding available. The University of Pretrial, PJI s upcoming virtual training and networking community, will be a valuable resource for 3DaysCount TM states, providing free information via videos with pre-recorded and paid membership options. Stage 5 PJI tracks results and provides rewards. PJI will marshal the resources and expertise of partner organizations funded to provide pretrial justice reform support. We envision a group of implementation teams around the three main goals of this campaign. The teams will provide support either directly or indirectly, depending on the nature of their funding and constituency. PJI can coordinate all activities in order to ensure leveraging of resources (some things, for example, might benefit all participating states or the national campaign). Supporting State Advocacy Organizations The level of support needed and the capacity of a state advocate will vary, but having funds to be able to match those needs would enable this effort to have boots on the ground in a 3DaysCount TM state. PJI can help identify funding opportunities for advocates. Rewards States that can show before-and-after results on the three goals of the campaign will be rewarded. We want to see reduced numbers of bookings, reduced inappropriate pretrial detention, the replacement of money bail with risk-based systems, and the use of limited and safeguarded detention based on assessed risk. We are still exploring options, but public acknowledgments and celebrations are often all that is needed to keep people motivated and competitive. PJI can work with individual states to determine effective and relevant rewards.

5 5 Examples of ways in which specific stakeholders and create change Each stakeholder or lead advocate in 3DaysCount TM can use his or her influence and position to different effect. Below are just some of the ways that some participants can help meet the 3DaysCount TM goals. Governors The powers and responsibilities of governors vary by state. In general, they are responsible for implementing state laws and overseeing the operation of the executive branch. Here are some powers and responsibilities that could be useful in advancing the 3DaysCount TM Campaign. Governors can: issue executive orders to form commissions to study specific issues and make recommendations; exercise certain powers to appoint commission members and chairs, cabinet-level leaders and, in many states, nominate judges; and work with their state legislatures to enact or veto legislation, confirm judicial nominees, setting policy priorities and mobilize public opinion through the statehouse platform. State Attorneys General The duties and responsibilities of Attorneys General vary across states. The office does not fit neatly into the separation of powers, given that it serves all three branches of government, but the Attorney General (AG) is considered primarily an executive officer. Attorneys General can: approve bond issues, including referendums and amendments; sit on various boards or commissions that direct administrative programs; defend state laws against constitutional challenges such as those that would further enshrine the use of cash bail in state law; work with the legislative branch regarding proposed bills; prosecute violators of state lobbying laws; participate as a member of judicial councils to promote judicial reform; collect statistical data and recommend procedural changes that will improve court work; render advisory opinions that are considered quasi-judicial in nature and provide clarity on the state s position regarding certain aspects of the law; exercise prosecutorial and law enforcement powers including training and influence over policy and practice.

6 6 Ways to Amend State Constitutions In many states, the ability to preventively detain dangerous defendants, based on risk, will require a constitutional amendment to remove the right to bail. Depending on the state, one or more of the following methods can be used to amend state constitutions: the legislative proposal method, the constitutional initiative method, the constitutional convention method, or the limited constitutional convention method. State constitutions can also be amended when a federal court finds part of a state constitution to be unconstitutional under the U.S. Constitution. When this happens, the provision must be removed or considered null. This can also occur when a state court finds an amendment to the state constitution to be in conflict with other parts of the state constitution. Role of Counties There is a role for counties in 3DaysCount TM. Counties can work together within a state to push for the state s application to the campaign and can issue individual county resolutions calling for the state to join. Counties might work through their state association of counties as a whole, or work with other state-level associations or advocates to support one of the three branches of state government in reform. If the constitution requires a voter referendum, counties will be instrumental in supporting voter information and education. Individual county resolutions could be issued in support of the campaign, and PJI will have a page on the campaign website where counties can issue official endorsements of the campaign. If a county policy body is in a state that is not one of the 20, they can always participate in reform via the University of Pretrial, where they can access cutting-edge coaching and technical assistance. 2) The 3DaysCount Campaign: National Public Education Campaign In addition to supporting participating states, 3DaysCount TM will run a sustained national public education campaign to increase the understanding and acceptance of the need to eliminate money bond. Based on years of research and experience, we know that: support for our campaign is high and the message (three days count) resonates broadly; people still do not understand how damaging money bond is to the integrity of the justice system or to individuals lives and how it undermines scientific risk assessment; addressing concerns about eliminating cash bail entirely will require a sustained educational effort on the benefits of pretrial risk assessment, its near-total absence today, and the very serious costs of continuing to rely on cash bail; the public perceives the for-profit cash bail industry as somewhat useful to justice operations and is largely unaware of their lobbying power that keeps this archaic industry in place.

7 7 We have research-based messaging to navigate this difficult terrain and to support the commonsense focus of the 3DaysCount TM solutions. We believe that a sustained national public education campaign is critical to supporting states and other jurisdictions engaged in reform. PJI will work with a communications consultant to develop and deploy such a campaign through the following tactics: producing and disseminating public service announcements; monitoring and tracking pretrial data in states and nationally and producing regular analysis; collecting information on policy development and on policy adoption, implementation, and enforcement; creating a how bail works operations manual; leveraging contacts to draw attention to and announce support for the campaign; creating a pretrial justice story bank/photo project; creating a national Champions Group to tell the stories of the men and women in systems who are making a difference in their communities; creating a Pretrial Campaign in a Box an off-the-shelf, do-it-yourself set of instructions for advocacy; building upon our social media presence to enhance support for changes in state-level laws; measuring public opinion changes in awareness, beliefs, attitudes, values, etc., by conducting before and after surveys in our 20 states; and infiltrating popular culture & entertainment. ***** This is a pivotal time in history to make lasting change. The work has been done to put pretrial justice front and center as a commonsense solution to a large part of our nation s mass incarceration challenge. Together, we have created impressive public and stakeholder support for change. This memo provides PJI s preliminary strategy to leverage our collective wins and end pretrial injustice in America once and for all. PJI is committed to supporting states that join while raising the funds needed to provide complete support. We look forward to sharing with you about how you can contribute.