July 10,2014 Webinar Defenders as Agents of Change: Pretrial Justice Reform in Maryland
Leah Garabedian, Defender Counsel l.garabedian@nlada.org Cherise Burdeen, Executive Director cherise@pretrial.org Ricardo Flores, Director Government Relations Division rflores@opd.state.md.us
Pretrial Justice: Right People in the Right Places Cherise Fanno Burdeen Executive Director July 10, 2014
We work to advance safe, fair, and effective juvenile and adult pretrial justice policies and practices that protect and honor all people. 4
National Symposium Recommendations Expand the use of citation releases Eliminate bond schedules Pretrial risk assessment Screening of criminal cases by an experienced prosecutor Presence of defense counsel at initial appearance Availability of detention without bail Pretrial supervision & monitoring Collection & analysis of performance measures
The Purpose of Bail 1. Protect the integrity of the court process 2. Protect the public 3. Protect against punishment prior to conviction
Where do we want defendants? High Risk Low Risk Out Bad Match Best Match Best Match Bad Match In Jail 7
Broken from the Beginning In too many instances, the present system... neither guarantees security to society nor safeguards the rights of the accused. It is lax with those with whom it should be stringent and stringent with those whom it could safely be less severe. - Arthur L. Beeley, The Bail System in Chicago (Chicago: University of Chicago Press, 1927: reprinted 1966)
In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. -Chief Justice William Rehnquist U.S. V. Salerno, 481 U.S. 739 (1987)
Where are people? Do we have the right people in the right places?
High Risk and Out? defendants who are high-risk and/or violent are often released nearly half of the highest-risk defendants were released pending trial. -Developing a National Model for Pretrial Risk Assessment, Laura & John Arnold Foundation, 2013 11
Low Risk and In? 60% 50% 40% 30% Increase in New Criminal Arrest Low-Risk Defendants* 39% 50% 56% 60% 50% 40% 30% Increase in 2-Year Recidivism Low-Risk Defendants* 35% 51% 20% 10% 20% 10% 17% 0% 2-3 Days 4-7 Days 8-14 Days 0% 2-3 Days 4-7 Days 8-14 Days *Lowenkamp, C.T., VanNostrand, M., & Holsinger, A. (2013). The Hidden Costs of Pretrial Detention. Laura and John Arnold Foundation. New York City, NY.
Outcomes of Pretrial Incarceration Developing a National Model for Pretrial Risk Assessment, Laura & John Arnold Foundation, 2013
WHAT IS THE RISK PROFILE OF MY CASELOAD? Or I m afraid all my clients would score high risk!
Risk Profile of Pretrial Defendants 6% 46% Low Risk 48% Medium Risk High Risk
Colorado Pretrial Risk Tool Risk Category Public Safety Rate Court Appearance Rate % of Defendant s 1 91% 95% 20% 92% 2 80% 85% 49% 3 69% 77% 23% 4 58% 51% 8%
NLADA Policy Statement on Pretrial Justice Practices Examine Pretrial Release Practices Within Their Own Jurisdictions to Identify Key Areas of Improvement. Identify and Implement National Standards and Best Practices. Develop Collaborative Efforts Among All Criminal Justice Stakeholders to Improve Pretrial Practices. Develop Effective Pretrial Litigation Strategies.
Pretrial Reform Case Study Maryland s 2014 Legislative Session: Factors & Lessons Ricardo A. Flores, Director Government Relations Division Maryland Office of the Public Defender
Three Preliminaries: #1 - My Working Theory on Legislation: Legislation is the result of certain decision makers exercise of power and persuasion, mostly carried out in non-public ways, but including stakeholder, advocate, media and constituent influence Knowing what s happening depends mostly on personal proximity to legislative actors and action, and proper interpretation of information Knowing how to influence the outcome as a stakeholder depends mostly on local experience and an array of strategies and tactics, plus a degree of experimentation
Three Preliminaries: #2 Maryland s Pretrial Process: Within 24 hours after arrest, police take the accused to a judicial officer called a commissioner, available 24/7/365, who notifies the accused of the charges, determines probable cause, advises the defendant of their rights and determines pretrial detention or release ( initial appearance ) For those not released (usually because they can t post their money bond) a second hearing before a judge is held, mostly within 24 hours, M-F, where broad discretion is exercised to eliminate or change the commissioner s conditions of pretrial detention ( bail review ) Both steps have been in place four about 40 years, and until very recently, neither step provided for attorney representation; costs for this system - mostly personnel costs for 280 commissioners and a small percentage of the judicial workload - totaled last year about $25M
Three Preliminaries: #3 Maryland s Richmond Decision: Constitutional claims of incarceration without representation were brought by 11 plaintiffs, among them a cement layer who had a $10,000 bail set for small amount marijuana possession and another who was in custody on $300 bail for over two months before all charges against him were dropped An initial holding in 2011 requiring state-funded lawyers at both hearings, based on statutory grounds, was limited by the Assembly to the second hearing only, adding about 40 attorneys plus support staff to OPD, and costing about $8M annually A second holding in 2013 based on constitutional grounds, now requiring statefunded lawyers at the first hearing - and estimated to cost about $30M - threw open a Pandora's box as decision-makers struggled with whether, how and at what cost to implement
The Bills: Two out of seven bills ultimately became the focal point for responding to the case The critical difference between the bills was how they replaced discretionary decision-making by the court commissioner: In the case of reform, Senate Bill 973 replaced discretion with: data-based risk assessment administered by executive agency personnel, mandating release or detention based on calculated level of risk. In the case of the status quo, House Bill 1186 replaced discretion with: political and numbers-based mandatory release and detention lists based only on current charge.
Outcome: In the end, the two bills more or less collided at the halfway-point in the legislative process With no legislative solution achieved, certain members of the Assembly, through a budgetary rather than legislative process, allocated a meager $10M to the Judicial branch After the legislative session was over, the Judiciary promulgated a court rule overturning their own high-court case, allowing a preliminary determination of detention and release explicitly authorized when no counsel is present - that actually codifies in court rule the very process declared unconstitutional by the case
Decision-Makers: Political Factors: An outgoing Governor with national aspirations had little reason to get very involved in a complicated issue with no obvious political benefit Ironically, both presiding officers were forced to pass bills from their chambers that they did not want The chairmen of the law committees were diametrically opposed on the core issue of multi-dimensional data versus one-dimensional policy
Political Factors: Stakeholders: the Judiciary did not play a neutral role, but positioned themselves as issue owners/experts and they in essence rejected data-based risk assessment A broad coalition of unusual suspects (Public Defenders, State s Attorneys, State & Local Corrections, ACLU) made a significant difference in the debate longtime campaign contributions from bail bond companies allowed lobbyists for their industry extra influence, particularly where it mattered most: legislative leadership
Policy Factors: Case-Related: focus on reform was essentially reactionary, prompted by a constitutional case and its implementation costs the constitutional rights underlying the case and our unique pretrial system limited the shape of reform The plaintiff class at issue aroused negative framing and values in the debate opponents felt this was an isolated problem faced by poor African-American criminals in Baltimore City
Policy Factors: Climate-Related: the state s economic trends, rather than its true capacity, became the money frame, providing opponents and easy excuse against investment election year politics bias legislators and the media towards easy, politically expedient issues, or ones they ve already been working on A shocking absence of civic knowledge and responsibility was exposed
Lessons: A careful inventory of your top electeds personal take on an issue is essential; fruit does not fall too far from the tree Government actors allegiance to our constitutional form of government cannot be assumed, and opportunities to highlight its importance should not be ignored The natural leverage afforded electeds who are higher up the ladder is time and context sensitive; anticipating and early advocacy for the use of such leverage is important
Lessons: The messy and prolonged back and forth on both primary and secondary issues will often make choices seem more divergent than they really are Do not assume any stakeholder or advocate will do what they are supposed to do, since particularly in complicated issues multiple values may play out in unexpected ways Do not over or under-estimate an opponent; power is best measured and analyzed through conflict and its results - carefully picked battles, even ones which you lose, can help you win the war
Defenders as Change Agents The playing field is not level. Everyone needs a lawyer. Lawyers need to know the risk level of their client in order to advocate. Pick a validated tool and hand score, just to see. Start with collaborative conversations about overarching policy objectives. Educate your office first, then your stakeholder partners. Fight if you have to. 31
www.pretrial.org facebook.com/pretrial @pretrial pji@pretrial.org 32
33