Tuesday, April 29, 2014

Taxpayer-Funded Release Systems: what is their return on investment

Do you know if your taxpayer dollars are being spent wisely in the criminal justice system?  Do you know what your return on investment is? 

The debate continues as to whether taxpayer funding should be used to release and supervise defendants in the criminal justice system or if private industry can do the same more efficiently.  The crux of the issue?  Money should not be required to be released from jail.  The argument?  Money bail discriminates against the poor and promotes the release of the rich.  Money bail keeps defendants in jail thus increasing the cost to taxpayers.  Provide defendants with taxpayer-funded release based on a risk assessment score with oversight by government employees, and all will be fine.  Make defendants pay for their release, which will only profit the bail bondsman, with no effect on public safety.  Money bail only buys someone’s release from jail and profits private industry. 

Despite numerous academic studies and proof that commercial bail is the most efficient and effective means of pretrial release due to the layers of supervision and financial accountability, the push to use non-financial release in the criminal justice system continues.

The fact that defendants released on unsecured means (taxpayer funds) have higher recidivism and failure to appear rates should be ignored.  Or that the taxpayer is financially responsible for those failures to appear.  In essence, the taxpayer is paying law enforcement to arrest defendants, paying to house the defendant, paying jail staff to interview and assess defendants, paying to process the release of defendants and paying to supervise defendants.  At no point does the defendant assume any financial responsibility for their actions under unsecured release methods.

What about a collaborative system where government and private industry work together?  Very rarely happens – and it is not due to the bail industry. 

Accredited Surety and Casualty Company, Inc. is domiciled in Florida and located in Orange County, Florida, thus much of the review and analysis of taxpayer-funded pretrial services programs is focused in Florida and specifically in Orange County.

In Florida, the Legislature passed the Citizens’ Right-to-Know Act that delineates requirements for non-secured release into any pretrial services program, public or private, which conducts investigations of pretrial detainees, makes pretrial release recommendations to a court and electronically monitors and supervises pretrial defendants.

Non-secured release means the release of a defendant from pretrial custody when no secured surety or cash bond is required as a condition of the release.  The act also requires pretrial services programs to provide an annual report for the previous calendar year to the governing body and to the clerk of the circuit court in the county where the pretrial release program is located.  The annual report must be readily accessible to the public.

For example, the annual report provided by the Orange County, Florida jail’s pretrial services program attempts to justify the program based on the following legal authority:

Article 1, section 14 of the Florida Constitution provides that: “unless charged with a capital offense or an offense punishable by life imprisonment, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions.”

Section 907.041(3), Florida Statutes, states that: “it is the intent of the Legislature to create a presumption in favor of release on non-monetary conditions.”

None of the two sections above provide any legal authority for the creation of a taxpayer-funded release and supervision program.  It simply provides that defendants are entitled to release on reasonable conditions and that the Florida Legislature favors release on non-monetary conditionsBoth of which can be ordered by a judge without the need for millions of taxpayer dollars to be allocated to create and fund a program to do the same.

Only 28 of 67 counties in Florida have determined that taxpayer funds should be used to establish a pretrial services program.  The rest of the counties manage their jail populations through public and private release mechanisms.  The Office of Program Policy Analysis & Government Accountability (OPPAGA) in Florida is charged with the annual review and adherence to statute for Florida’s pretrial services programs.  The last report available from OPPAGA (report 13-12, December 13) for the 2012 calendar year noted the following:
  • Only 11 out of 28 programs were able to provide a detailed breakdown of the nature of a defendant’s criminal history to the court;
  • Only 15 out of 28 programs charge fees to defendants to support program services;
  • Programs had varying numbers for failures to appear and arrests for new offenses, thus no consistency among programs;
  • Several programs did not provide criminal history data as required in the weekly registers; and
  • Only 11 out of 28 programs reported that in all cases it had certified to the court that it had obtained and verified required elements for non-monetary releases at first appearance hearings as required by statute.
Orange County, Florida
The Orange County jail houses a taxpayer-funded pretrial services program.  The program operates 24/7 and is comprised of two key functions:
  • Inmate identification, court information and release processing – funded at $1,466,024 for the 2013 fiscal year; and
  • Post-release supervision of non-secured releases (taxpayer-funded release) to include supervision of defendants on electronic monitoring – funded at $1,160,936 for the 2013 fiscal year
Orange County's home confinement program, which supervised defendants on electronic monitoring, was terminated in April 2013 in the wake of the alleged murder of Alex Zaldivar by a defendant who was supposed to be supervised by the program.  Internal reports found glaring errors in the routine monitoring of inmates in the home confinement program to include:
  • Improper compliance audits and compliance with program conditions;
  • Home confinement staff failed to address night time and weekend alerts in a timely manner or sometimes not at all;
  • Failed to conduct administrative hearings when excessive violations occurred; and
  • Staff were instructed to reduce revocations on supervised defendants to “keep their numbers up” in order to sustain the program. 
A review of data supplied in the 2013 annual report of Orange County’s pretrial services program revealed the following:
  • The supervision program operates Monday-Friday only and provides minimal supervision through telephone reporting and office contacts;
  • The supervision program was funded at $1,160,936 with the budget consistently increasing each fiscal year;
  • The inmate identification, court information and release processing was funded at $1,466,024; it should be noted that this funding also allows jail staff to release defendants on their own recognizance without ever seeing a judge over 340 defendants in 2013;
  • Only slightly over half of the defendants were required to post a cash or surety bond in addition to taxpayer-funded supervision;
  • 18.5 percent of defendants on taxpayer-funded supervision did not successfully complete the program;
  • While the supervision budget increased over the 2012 fiscal year, less money was collected in program fees from defendants (this could have been in part due to the termination of the home confinement program);
  • The taxpayer cost of supervision per person was $343; and
  • The return on investment for fees collected vs. supervision funds expended was 1.29 percent.
Need for collaboration
The bail industry has stressed the importance of private and government entities working more collaboratively together to monitor pretrial defendants when released on taxpayer funds and a bail bond.  This has specifically been discussed with the leadership at the Orange County jail by bail industry representatives.  When defendants are released on a bail bond and the court places them on taxpayer-funded supervision to monitor other conditions of release, both entities should work together for a successful conclusion to the case.  Both entities have a vested interest in making sure the defendant is adhering to conditions of release and the community is safe.  Particularly the bail agent as they are financially responsible for that defendant. 

To date, little collaboration is occurring in Orange County with the bail industry and criminal justice partners.  But the industry will remain willing participants if and when the overture is made.

Are there flaws on both sides of the fence?  Of course.  There are good and bad players and experiences in every industry unfortunately.  The commercial bail industry will continue to work with stakeholders to ensure laws and regulations governing the industry are adhered to.

The bail industry and taxpayer-funded release systems should work together to create more accountability on the part of offenders and increased public safety for victims and the community as a whole.  Such collaboration will only strengthen the criminal justice system in the end, which is what we should all strive for. 

Tuesday, April 15, 2014

Domestic Violence Offenders in the Criminal Justice System

A 1992 murder of a domestic violence victim in Orange County changed the way judges considered bail for people charged with domestic violence.

Dusty Spencer was arrested for choking his wife Karen in December 1991.  He told her that if he got out, he would kill her.  And he did so very violently.

Mr. Spencer was held on a no-bond status after he called his wife from the jail and threatened to kill her.  His wife obtained a temporary restraining order the day after his arrest, which prevented him from returning to the home.  A few days after his arrest another judge set bond at $5,000, which Mr. Spencer paid through a bail bondsman and he was released.  On January 18, 1992 he went to his house, dragged his wife into the back yard, smashed her face with a brick, stabbed her and rammed her head into a concrete wall.  When deputies arrived she was already dead.

A January 8, 2001 article on the case in the Orlando Sentinel said that after Mrs. Spencer’s killing, judges refused to set bail in most domestic violence cases as perpetrators were regarded as potential murderers.  But an appeals court forced judges to consider bail in most cases. 

The Purpose of Bail

The main purpose of bail is to ensure the appearance of the defendant at all required court proceedings.  If the defendant fails to appear for court the bail agent is financially responsible to pay the court the bail amount in full. 

Whether the court orders a defendant released on a bail bond, taxpayer-funded release or release on own recognizance, there is no guarantee that a future crime will not be committed.  That is why it is so important for the judges and others involved in the criminal justice system to have a good assessment of a defendant to determine the risk to the community upon release. 

It is all of our responsibility to do our part to hold perpetrators accountable and victims safe.  That includes the jail staff that screens the defendant for first appearance, the judiciary, state attorney, public defender, the bail agent that takes the risk to post bail for a domestic violence offender or others who are charged with supervision of that offender.  None of us can sit back and not do our due diligence to make sure we are doing all we can to ensure a successful outcome of a case.

Financial Release

There has been much debate as to whether or not financial release punishes the poor and rewards the wealthy.  We have discussed those issues in previous blog postings.  However it is not hard to understand that when someone has personal financial resources, or a family or friend’s financial resources at stake, they may tend to take a situation more seriously and do what they should.  

Particularly in cases of domestic violence, all parties involved in a case should consider other conditions of release outside of just financial conditions, to again add a layer of accountability and community safety.  No one should simply allow a defendant charged with domestic violence to post a bond and then hope that all will turn out well – not the court, jail staff or the bail agent on the bond.

There are many scenarios where government and private industry work together for a common goal.  The criminal justice system should be no exception.  Operating in a silo gets little results while combining the expertise and resources of all enhances successful results.

Taxpayer-Funded Release

There has been a growing concern among domestic violence advocates that perpetrators charged with domestic violence are being released from jail on non-financial release with minimal supervision – calling into an automated telephone answering system or at most, a quick face-to-face meeting with a jail employee to “check-in.”  Or the domestic violence offense is plead down to a lesser offense. 
And we all know that house arrest or GPS monitoring is only good if someone is actually doing the monitoring.

Domestic violence is a prevalent crime and one that is often unpredictable.  People with no history of domestic violence and those who have long histories of domestic violence can escalate such violence to dangerous and lethal levels. 

Can financial release for domestic violence offenders increase safety for victims?  It is a debate that should be considered.  Offenders who must post significant financial resources or rely of a family member to do so for them, knowing the financial impact for not adhering to release conditions, have something at stake in their release.  That doesn’t mean that a bail agent securing the release of a domestic violence offender should just take the money and not take the individual’s offense seriously.  Domestic violence offenders should be held to a higher level of accountability while being given the tools and resources to help them change their controlling behaviors.  Others would argue that domestic violence offenders should be held without bond, which would then raise the issue of jail overcrowding and the impact on taxpayers.  There needs to be a better solution.

Orange County Releases

A recent sample of 14 weeks of releases into the Orange County, Florida jail’s taxpayer-funded pretrial services program, revealed that defendants charged with domestic violence, dating violence, battery, violation of domestic violence injunction, assault domestic violence and aggravated battery domestic violence are being released on non-monetary means.  Tax dollars are being spent to arrest, process, release and supervise these defendants.  If any of these defendants fail to appear for court, more tax dollars will be spent trying to find them.

From December 29, 2013 through April 5, 2014, 178 defendants charged with the above offenses were released on taxpayer funds – some charged with more than one offense and some with prior abuse offenses.  All but seven were declared indigent by the court, although 31 of those indigent defendants had lengthy criminal histories and had secured financial release several times for previous arrests.  Some defendants charged with these offenses had only traffic histories while others had no criminal history. 

For example:

  • Defendant A – released on non-monetary means on 1.5.14 charged with domestic violence and two contempt of court charges.  Defendant’s history includes 19 traffic offenses, four misdemeanors, 15 felonies and one prior domestic violence chargeDefendant was declared indigent but secured financial release four times.
  • Defendant B – released on non-monetary means on 1.24.14 charged with domestic violence.  Defendant’s history includes 8 traffic offenses, 7 no degree offenses, ten misdemeanors and ten feloniesDefendant was declared indigent but secured financial release eight times.
  • Defendant C – released on non-monetary means on 2.2.14 charged with domestic violence and criminal mischief.  Defendant’s history includes 2 traffic offenses, 1 no degree offense, 21 misdemeanors, 11 felonies, two prior domestic violence charges and one assault charge on law enforcementDefendant was declared indigent but secured financial release 16 times.
  • Defendant D – released on non-monetary means on 2.9.14 charged with dating violence.  Defendant’s history includes 1 traffic offense, six misdemeanors and three feloniesDefendant was declared indigent but secured financial release seven times.
  • Defendant E – released on non-monetary means on 2.9.14 charged with domestic violence.  Defendant’s history includes 3 traffic offenses, 13 misdemeanors and nine feloniesDefendant was declared indigent but secured financial release five times.
Across the country, defendants are being released into these taxpayer-funded programs for a variety of offenses, both misdemeanor and felony.  However given the volatile and unpredictable nature of domestic violence, increased collaboration between the public and private sectors in the criminal justice system should occur to hold perpetrators more accountable for their behavior and encourage survivors to seek help and assistance.

Domestic violence can happen to anyone.  It costs all of us.

To learn more read Harbor House of Central Florida's 2012-2013 Impact Report.