Not locked up, but still coming to court

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As court systems nationwide struggle with how to release more people as they await trial, places that have moved faster than Cook County on reforms are discovering encouraging results.

The number of suspects who either commit new crimes or fail to show up in court does not necessarily rise when more people are released before trial. Instead, court systems are discovering that they can avoid bad outcomes by assessing defendants’ risk and taking steps to stay in better contact with those who are at home awaiting trial. Even a simple reminder of when and where to appear in court makes a significant difference, studies have found.

The results of those studies are of particular importance in Cook County, where officials are working to adopt procedures that would release more people accused but not yet tried on charges of nonviolent crime.

A class action lawsuit was filed this month that challenges the constitutionality of holding people in Cook County Jail only because they are too poor to pay the bond required for their release.

An Injustice Watch examination this month of the bail system reported that efforts by Cook County officials to release more pretrial defendants have faced a number of obstacles. The jail is filled with thousands of people each day who have not been convicted of anything but remain locked up because they cannot post the required bond, regardless of whether they pose any danger.

Yet studies of the impact of reforms adopted in other jurisdictions contradict assumptions that bad outcomes will result if more people are released while awaiting their day in court.

In Washington, D.C., officials enacted sweeping reforms in 1992 that nearly did away with cash bail, focusing on the potential danger a suspect poses – either to the community or of failing to show up for court. Suspects deemed dangerous are held in custody, but most people are released under the supervision of the district’s Pretrial Services Agency, which monitors those released and reminds them of when and where to appear in court. Today, nearly 88 percent of the city’s defendants are released without having to post money.

Figures from the last fiscal year show 91 percent of defendants awaiting trial in Washington did not reoffend. Ninety-eight percent did not commit any violent crimes pretrial, and 90 percent showed up to every court date.

“Money is never going to be an appropriate means for assuring a return to court,” said Cliff Keenan, director of the city’s Pretrial Services Agency. Before the Bail Reform Act, Keenan said, “Failure-to-appear rates were in the upper-teens to low-twenties, whereas for the last number of years now, we’ve been hovering around 10 to 11 percent.”

The system has become a model for jurisdictions around the country.

Under pressure to ease jail overcrowding and to reform the bail system, Cook County officials together with Illinois state court officials traveled to Washington more than a year ago to observe that system.

Since then, court statistics show, judges have been releasing more people without requiring bond, and in cases where bail is required the amount has drifted lower. The average daily jail population has dropped from more than 10,000 people a day to about 8,200 people.

Even so, the vast majority of the jail is filled with suspects awaiting trial who have not yet been convicted. Among them are hundreds of people each day locked up only on misdemeanors, and many more for nonviolent felonies who are held because bail is set at an amount beyond their means.

State Supreme Court Justice Anne Burke is among those “frustrated” that Cook County has not moved faster to reform the system, citing the experience of Washington and other jurisdictions that have pushed ahead.

Across the county, Cook County officials have been gradually implementing a risk assessment tool developed by the Laura and John Arnold Foundation that is designed to reduce the number of people ordered held in custody by seeking to objectively determine the risks of their release. But studies by the Cook County sheriff’s office, as well as observations by Injustice Watch reporters, document that Cook County judges have often imposed cash bail on defendants who are not judged dangerous or likely to flee.

After facing their own jail overcrowding crisis, Kentucky officials enacted a sweeping state law in 2011 to reform bail and have begun using the Arnold Foundation’s risk assessment tool statewide.

Judges can set bail for suspects considered a flight risk or a threat to public safety. But defendants who are not considered dangerous are released without posting money. Pretrial supervision, including electronic monitoring, may be ordered for moderate-risk defendants.

The result: More people charged with minor crimes were released during Kentucky’s first year of reform, yet neither the failure-to-appear rate nor the commission of new crimes by those suspects increased, the state’s pretrial services agency reported.

“You’ll never be able to look at an individual and say, ‘This person is definitely going to return to court or definitely not going to reoffend,’” said Brian Scott West, general counsel for Kentucky’s Department of Public Advocacy. “[But] if you have something that’s that accurate, it’s so much better than what we used to have, which was judicial hunch.”

Similarly, after officials began relying on the risk assessment tool in Lucas County, Ohio – which includes Toledo – a study found the percentage of defendants who missed their court dates fell from 41 percent before the tool was implemented in January 2015 to 29 percent afterwards. The number of defendants who picked up new charges while awaiting trial was also cut in half.

How does it happen that people who are not locked up still show up for court? That can include officials more closely supervising people awaiting trial as needed. But officials in several jurisdictions have found that simply reminding people about when and where to appear makes a big difference.

In one study of court cases in Jefferson County, Colo., phone calls to defendants one week before their scheduled court dates caused the rate of appearances to jump from 79 to 88 percent.

“We know that if we just call people or send a text message … almost everybody will come,” said Tim Schnacke, a bail expert and executive director of the Center for Legal and Evidence-Based Practices, who co-authored the Jefferson County study.

Officials in Delaware discovered something important when they began a formal notification program directing people when and where to appear: A perceived difference by race in who showed up for court vanished. A study of counties that adopted the notification program, undertaken for the Delaware Courts by the Equal Justice Initiative, found that 23 percent of white defendants and 40 percent of defendants of color were failing to appear before the system was adopted. But after the notification systems had been enacted, 18 percent of white defendants and just 14 percent of defendants of color failed to appear, the report states.

Schnacke said that the research shows “people don’t mean to skip—they just spaced out. The flight thing is just not as big a deal as you’d think.”