Monday, February 1, 2010

January 2010 Report Card of Florida's Pretrial Services/Release Programs

The Office of Program Policy Analysis & Government Accountability (OPPAGA) released it's second year report in January 2010 regarding the effectiveness and efficiency of Florida's pretrial services/release programs. Florida has 28 such programs, which are all funded with our tax dollars and run by either the Sheriff or Board of County Commissioners. Yet only 26 programs responded to OPPAGA's request for information - two programs simply ignored the request!

With the passage of the Citizens' Right-to-Know-Act in July 2008, all pretrial services/release programs are required to produce a weekly register detailing information on defendants released through their program, along with an annual report. OPPAGA is charged with monitoring adherence to this legislation and conducting an annual review. Only 24 of the 28 pretrial services/release programs are adhering to the law in terms of reporting requirements, and of those, there is no consistency in how they report their data and outcomes as quoted by OPPAGA:

"Many programs' annual reports do not contain outcome data as required by statute. Further, the programs that have reported this data used different methods to compute those outcomes. As a result, statewide data are not available to compare outcomes across programs or to compare defendants in these programs to those released on bond or on their own recognizance."

Yet OPPAGA is suggesting to the Florida Legislature that they consider streamlining some of the reporting requirements to improve clarity and reduce administrative "burdens" on pretrial services/release programs! And, pretrial services/release programs don't want to have to report on a weekly basis; they are fighting to only have to report on a monthly basis. If such programs don't adhere to reporting requirements as outlined by statute now, and OPPAGA has no authority to sanction them, what do you think will happen if reporting criteria is further streamlined and lengthier time frames are issued for reporting? The public will further remain in the dark!

Other interesting facts highlighted by OPPAGA:

  • Nature of criminal charges: OPPAGA states that most pretrial services/release programs restrict eligibility to defendants with less serious criminal charges.

    This was proven to not be the case in Orange County when defendants charged with serious offenses, many of whom had lengthy criminal/driving offense histories, were routinely being released through the program without ever seeing a Judge. The private surety bail industry was instrumental in getting this release mechanism revoked. Only a thorough review of the release registries will show if this is happening in other programs statewide, which OPPAGA never reviews.

    As stated in the OPPAGA report, "Judges have broad discretion to place defendants in a pretrial services/release program, including those with more serious charges and criminal histories. Therefore, some defendants with violent offense histories or charges, such as aggravated assault and battery, have been placed into pretrial services/release programs. As a result, these programs serve defendants with varying levels of risk to public safety."

    In Orange County, even though release by jail staff was revoked, Judges are now releasing defendants charged with domestic violence, battery, burglary, DUI, petit theft, no valid driver's license, possession of drug paraphernalia and cannabis, controlled substances, trespass and aggravated battery on a pregnant person into the pretrial services/release program. In such releases, a bond should be added as a condition of release as an added layer of accountability!

  • Missed court appearances and re-arrests: OPPAGA states that pretrial services/release programs are required to report the name and case number of defendants granted non-secured release who failed to appear for a schedule court appearance, were issued a warrant for failing to appear or were arrested for any offense while in the program. Such outcomes are important public safety indicators that can be used to analyze the effectiveness of pretrial services/release programs.

    However, about half of Florida's pretrial services/release programs did not report data on these outcomes! Programs reported various reasons for not reporting these data, such as their information systems did not capture the information or that they did not have enough time and resources to collect the data. Then how do you know if you are effective in your release mechanism and its effect on public safety?

    OPPAGA stated, "The programs' failure to report outcome data limited our ability to determine the statewide percentage of defendants served by the programs that violated the terms of their condition. These reported outcomes should be interpreted with caution due to the large number of programs that failed to report data and differences among the programs in how they classified failure to appear rates. Further, some programs counted any missed court appearance as a failure to appear while others did not count a missed court appearance as a failure to appear until the court issued a bench warrant. Some programs computed failure to appear rates as the total number of scheduled court appearances divided by the total number of missed court appearances while others computed this rate by dividing the total number of defendants by the number who missed at least one court appearance."

  • Have pretrial services/release programs implemented best practices to ensure appearance in court and no new arrests: OPPAGA identified five nationally recognized best practices for supervising defendants and reporting information to the courts: provide risk information, effectively supervise defendants, remind defendants of their court dates, inform the court of violations and establish and report performance measures.

    The use of a formal risk assessment is an important tool to determine a defendant's appropriateness and eligibility for a pretrial services/release program. Yet according to a 2009 national survey by the Pretrial Justice Institute (PJI), 48 percent of programs have never validated their risk assessment tool, thus they are unable to provide the court with meaningful information on a defendant. The PJI survey showed that only 87 percent of programs check state criminal history records, 86 percent check both the National Crime Information Center and local criminal histories and only 40 percent review motor vehicle records.

    The National Association of Pretrial Services Agencies (NAPSA) and the American Bar Association (ABA) both have standards regarding providing, "appropriate and effective supervision for all persons released prior to adjudication of their case." Yet again, the PJI in their most recent 2009 national survey of pretrial services/release programs indicated that the most common supervision options reported are to have defendants check-in by telephone or in person. Many programs in Florida allow defendants to call in to an automated telephone answering system as their preferred method of supervision! No field visits to a defendant's home or work site, no integration of family into the pretrial release contract and limited face-to-face contact.

    Both NAPSA and the ABA make it clear that it is the responsibility of a pretrial services/release program to remind defendants of their court date. Most programs review the court date with defendants after the first appearance and during supervision contacts or call or write the defendant with a reminder date. About five percent use an automated dialing system and 17 percent use automatically generated reminder letters. However, according to the 2009 nationwide PJI survey, ten percent of programs have no court reminder procedures; 17 percent of probation-based, 12 percent of jail-based, ten percent of court-based and five percent of nonprofit-based programs have no court date reminder procedures.

    Failure to appear for court is a common violation among pretrial release defendants. According to NAPSA standards, pretrial services/release programs should facilitate the return to court of defendants who fail to appear for their scheduled court date. Yet again according to the 2009 nationwide PJI survey, only 84 percent of current programs take some action in following up with defendants who have failed to appear and the most common action is to call the defendant and urge a voluntary return to court in 62 percent of the cases!

    Performance measures such as calculating the failure to appear and re-arrest rates of defendants are key factors in determining the risk level and appropriateness for a pretrial services/release program. Defendants who fail to appear cause significant costs to the criminal justice system and new crimes committed by pretrial defendants affect public safety. However, the nationwide PJI survey found that only 68 percent of pretrial services/release programs calculate the failure to appear rate and only 37 percent calculate the re-arrest rate. The PJI calls such reporting, "discouraging."
  • Given all of this information, OPPAGA is still recommending the following to the Florida Legislature:

    • Require programs to report data on a monthly instead of a weekly basis;
    • Clarify requirements to assist in the consistent interpretation and application of the law; and
    • Modify or eliminate reporting requirements that do not directly relate to program effectiveness or cost-efficiency.

    The private surety bail industry contends that all of the current reporting requirements directly relate to program effectiveness and cost-efficiency of Florida's pretrial services/release programs. The agency charged with evaluating such effectiveness has clearly stated that many programs are already failing in their reporting requirements to the point that such programs' reported outcomes should be interpreted with caution.

    Please stand behind the private surety bail industry and demand that your valuable tax dollars be spent wisely and appropriately! The public should have a right to know all reported outcomes of defendants released through a pretrial services/release program and to demand that such programs not become a, "criminal welfare system!"

    Public policy affects public safety!

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