Incarcerating people prior to trial is fraught with challenges. It can be a costly process – both to the system as well as to those involved in the proceedings.
Based on the latest, evidence-based data, Arizona has been exploring and trialing a pre-trial release program designed to provide freedom with reasonable restrictions to those awaiting trial – without having to be incarcerated.
Join our speakers, Tom O'Connell and Kathy Waters, for this discussion of Arizona’s three-year process – from idea to, pilot, to launch in all 15 counties, covering what the process was like, the lessons learned, and the challenges the team learned along the way.
(This interview has been edited for length and clarity.)
Justice Clearinghouse Editors (JCH): Your webinar is specifically about "Creating a Culture of Pre-Trial Release." Share with us a bit of the history of this project — how you got to this point. Why is Arizona shifting from "a culture of detention" to a "culture of release at the pre-trial stage?"
After distributing the COSCA White Paper on Evidence-Based Pretrial to judges in Arizona and gaining their support, one of these goals included “improving and expanding the use of evidence-based practices to determine pre-trial release conditions for low-risk offenders,” recognizing that not all persons arrested for crime need to have a money bond or supervision imposed to help ensure they appear for court or remain crime free. Many low risk defendants can successfully be released based on their promise to appear. At the same time, persons are released with a money bond who may be high risk but can afford the bond posing a risk if released. The use of the assessment advises the court and assists in the release decision based on the risk.
Arizona has experienced great success using evidence-based practices and actuarial risk assessments within probation supervision and the research supports the same principles could be applied to pretrial defendants.
Our initial step was to evaluate pretrial risk assessment tools which could be considered for use in Arizona.
Fortunately, around this same time the Laura and John Arnold Foundation (LJAF) were seeking jurisdictions interested in piloting the Public Safety Assessment (PSA) and Arizona was selected to pilot that assessment in 4 Arizona counties (Gila, Mohave, Pinal and Yuma) as well as one Municipal Court (Mesa Municipal Court).
Pretrial detention for a defendant
was nearly 10 times more expensive
than the cost of supervision of a defendant
by a pretrial services officer in the federal system.
The pilot jurisdictions all received extensive training on pretrial risk assessment and the legal framework and history that applies to the pretrial stage. Additionally, we were exposed to the latest research surrounding the “hidden costs of pretrial incarceration” and the harm even short periods of incarceration can cause for low-risk offenders, such as loss of employment or loss of housing.
The Administrative Office of the Courts continued to share the information learned during the pilot period with stakeholders in all Arizona counties and, as a result of our work with the Arnold Foundation and the successful implementation in the five pilot jurisdictions, other Arizona counties expressed interest in expanding pretrial services and wanted to adopt the PSA as their pretrial risk assessment tool. Generally, these requests came from the Presiding Judges in the other Arizona counties.
In order to move to a culture of release, it is important to know an arrested person’s risk of failing to appear for court or committing a new offense while on release.
By implementation of an actuarial risk assessment tool, stakeholders can use this information to assist in determining who is a good candidate for release and who presents risks that need to be mitigated by special release conditions or monitoring by pretrial services or detained.
With these goals in mind, the court and justice system stakeholders can evaluate which conditions need to be imposed to release the defendant at the initial appearance to help mitigate any risk, rather than thinking about how high of a bond should be imposed to keep the defendant in custody.
JCH: What are the challenges involved in creating such a program? What benefits do you anticipate for your various stakeholder groups?
Kathy Waters: Because we did not receive any additional money to implement pretrial, we had to be very creative in identifying resources to create pretrial services where they did not exist.
About six of the 15 Arizona Counties already had some form of pretrial services. However, the other counties required shifting some staff resources from probation to pretrial services. Because the purpose and goals of probation differ from those of pretrial, it was also important to make sure staff are trained on those differences.
Pretrial should have a specific mission and focus separate from probation, especially if they are within the same agency.
An importance part of any evidence-based practice is data collection and evaluation. That is very complex during the pretrial stage and data systems need to be created or enhanced to allow for the ability to generate data and evaluate the impact of these changes. Arizona continues to work with the Arnold Foundation on measuring the outcomes at the pretrial stage.
JCH: How does a "culture of release" change things for Arizona's justice professionals: whether it be lawyers, prosecutors, police, etc?
Tom: As with any form of change, people are naturally resistant because things are now different from the way they are used to doing business.
The use of money as a condition of release is a very good example. Trusting the research and following research rather than the way we have always done business is a culture change that has to occur over time. We have found that those stakeholders who are initially resistant gradually begin to accept the research and a new way of doing business, but usually after getting more information and training about the new process and seeing the new process in practice.
When held 2-3 days,
low-risk defendants are almost 40 percent more likely
to commit new crimes before trial
than equivalent defendants held no more than 24 hours.
Source: "The Hidden Costs of Pre-trial Detention," The Arnold Foundation
During the implementation process in all jurisdictions, the various stakeholders of the criminal justice system were invited to participate in the implementation process and were provided opportunities to be involved in these changes.
For counties where no pretrial services existed before 2014, they needed to create new pretrial services units. All but two counties created pretrial services within their existing adult probation departments. We now have 14 within probation and one under court administration.
Because the PSA risk assessment is used at the initial appearance court, all stakeholders involved in the process need to be included. This would include sheriff’s offices or arresting agencies who provide information about the person's arrest and the initial appearance judges as well as prosecutors, defense attorneys, court administration and clerk of the court.
JCH: A large number of our readers and subscribers are in law enforcement, but we have representation from all parts of the justice arena. Can you share some specifics how different groups might benefit by attending your webinar?
Kathy: Studies and data has shown the issue of pretrial detainees remaining in jail is a nationwide concern. In most jurisdictions, the jail population is predominantly pre-adjudicated individuals who are in jail solely because they cannot afford a money bond. This has a day-to-day fiscal impact on jurisdictions as well as contributing to jail overcrowding.
The decisions made at the initial appearance courts have an impact on everyone in the criminal justice system. Releasing high-risk defendants can impact public safety and detaining low-risk defendants can have negative effects on the defendant and can increase their risk of new criminal activity.
Law enforcement officers should be informed of these changes to help them understand why the court might release a person only a few hours after they have just booked them into jail.
Additionally, pretrial reform also includes changes to the processes associated with keeping those defendants in custody who are identified as dangerous or too high of a risk to be released. This webinar will touch on the risk factors that are considered when scoring the assessment to determine a person’s risk of new criminal activity or risk of failure to appear for court.
JCH: For other states who might be looking to Arizona as an example, what advice might you have for those looking to start their own programs or "cultures of release"?
Tom: It’s important to have “champions” of this reform effort as Arizona does with our Chief Justice Scott Bales.
Local “champions” who will help carry this message at the local level is equally important. While the release decision is a judicial decision, the “champion” can be anyone in the criminal justice system.
In some states, the efforts began with the prosecutor. Because the pretrial reform effort is currently widespread on a national level, I would encourage other states to become involved with the various agencies who have dedicated resources to this reform effort.
The Pretrial Justice Institute (PJI), the National Institute of Corrections (NIC), the Arnold Foundation, the National Association of Pretrial Services Agencies (NAPSA) are just a few and there are many other associations who support these efforts. These all have valuable resources, articles, videos, etc. on their websites highlighting these issues and the efforts going on throughout the country.
Learn more about Pre-Trail Release by joining this recorded webinar.