Wednesday, November 28, 2012

The Elusive Pretrial Risk Assessment Instrument

Taxpayer-funded pretrial services programs say that money bail is unfair and that it does not use any type of risk assessment instrument as their programs do.  They claim pretrial services programs have, “moved into evidence-based practices using scientifically proven risk assessment instruments.”

Evidence-based practices (EBP) is an interdisciplinary approach to clinical practice that has been gaining ground following its formal introduction in 1992.  It started in medicine as evidence-based medicine (EBM) and spread to other fields such as dentistry, nursing, psychology, education, library and information science and other fields – it was only a matter of time before the pretrial release arena picked up the concept as well.

A pretrial risk assessment research summary funded by the Bureau of Justice Assistance and authored by Charles Summers, Ph.D., and Tim Willis, Ph.D., states that pretrial risk assessments are designed to provide information about the risk of failure that a given defendant poses if released before adjudication of his or her case.  Typically, failure is defined as failure to appear (FTA) for the scheduled court date and/or re-arrest for further criminal violations prior to adjudication.

Proponents claim that a pretrial risk assessment instrument, otherwise referred to as a “PRAI,” can be used to classify defendants based on their flight risk and their threat to community safety, however according to the above authors, the standardization of pretrial risk assessments is relatively new.

Defendants can be classified into one of four categories using a risk assessment instrument:
  • Low risk—individuals who can be released with little or no supervisory conditions with  reasonable assurances that they will appear in court and will not threaten community safety. 
  • Moderate risk—individuals who can be released with conditions placed on them with reasonable assurances that they will appear in court and will not threaten community safety. 
  • High risk—individuals who can be released only with the most stringent conditions placed on them with reasonable assurances that they will appear in court and will not threaten community safety.  
  • Highest risk—individuals who cannot be released with any reasonable assurance that they will appear in court or that they will not be a threat to community safety.
A pretrial risk assessment instrument can be qualitative or quantitative or a mixture of both measures.  Research has shown that qualitative risk assessments are not as popular because they are less consistent and have less predictive value than quantitative measures.
Quantitative pretrial risk assessment instruments supposedly assign numerical values to various risk factors and evaluate risk based on the total point values assigned to a given individual.  However, despite 30 years of research, the efficacy, or the quality of being successful in producing an intended result, has not always occurred according to
Marie VanNostrand, Ph.D  Dr. VanNostrand, a leading advocate for the promotion of taxpayer-funded pretrial services programs, states that pretrial risk assessment instruments of all types are still relatively unknown.

Despite these facts, taxpayer-funded pretrial services programs continue to promote themselves as using state-of-the-art risk assessment tools while chanting their motto that there are other ways of pretrial release that doesn’t rely on financial terms.
Well maybe for the defendant who is released free of charge this would be a win-win situation, but definitely not for the taxpayer who picks up the tab for that release and supervision on top of that.

The Santa Clara County, CA Office of Pretrial Services uses a risk assessment instrument to release defendants charged with crimes such as theft, drug offenses and DUI’s.  It doesn’t matter if these defendants have been able to pay for their own release in the past because “money bail is bad,” and defendants should be released free of charge.

The Director, Gary Herceg, states that his program has an 87 percent return rate, which he claims is “impressive.”  He doesn’t mention that he also has a 13 percent failure rate, which would decimate the bail bond industry if they had such a failure rate.

But the difference is that the bail industry is made up of private businesses that use no taxpayer dollars to supervise defendants - and not a huge government bureaucracy that wants more taxpayer dollars to release and supervise defendants.  Bail agents have to work harder and smarter.

The San Francisco Pretrial Services program has been lauded as being innovative as well.  Director Will Leong states his program uses a “supportive services model,” where a judge can determine if a defendant needs some additional "structure" with a no-bail release.  Supportive services programs, offering anger management classes or drug treatment, even picks defendants up
who have been ordered into the programs directly from the jail.  In Mr. Leong’s words, “immediacy works.”

Well "immediacy" also works when it comes to the financial release and accountability for a defendant, especially when family and friends must put up their own financial resources for a defendant’s release.  Bail agents work closely with family and friends to secure the release of a loved one and offer flexible payment plans.  Commercial bail offers a layer of accountability that is non-existent with other unsecured release methods.

In the meantime, both Mr. Herceg and Mr. Leong, whose salaries are paid for by taxpayers, are traveling throughout California giving speeches and offering advice to other government entities on how to start a taxpayer-funded pretrial services program instead of using the most efficient and effective time-tested method of pretrial release – secured release.

Bail agents must assess the risk of every defendant.  Bail agents conduct extensive interviews with both the indemnitors and later with the defendant to assess and evaluate risk.  Third-party indemnitors provide a critical source of knowledge to bail agents, which enhances commercial bail’s effectiveness and ability to proactively manage risk.

The bail industry has always said that pretrial services programs can provide a vital service to reduce jail overcrowding – by focusing on securing the release of the truly indigent first-time, non-violent offender.  Indigency should be a key factor for free release - and not just having a defendant sign a piece of paper saying they are indigent - but conducting an evaluation of their finances, employment history etc. to truly determine if they qualify for taxpayer-funded release.

But when such programs begin expanding beyond this scope and advocating for free release for everyone and then to be supervised by a taxpayer-funded government program, then we all need to pay close attention to that message.

Learn the facts about commercial bail.


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  2. Bail agents must assess the risk of every defendant. It conduct extensive interviews with both the indemnitors and later with the defendant to assess and evaluate risk.

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