Government: is it eliminating private business?

Unfortunately a fact of life is that government can always out-do private business because the government has the benefit of taxpayer monies.  Government can step in the way of a private industry that has centuries of success and efficiency.  Too many times what was originally meant to become a program that would ultimately save taxpayer dollars becomes a huge bureaucracy that is unwieldy and inefficient.  And the term “profit-making industry,” becomes something that is wrong.
 
Take the taxpayer-funded pretrial services system.
 
Originally established to help the poor, non-violent offender seek release from jail because they could not afford financial release, today such programs are competing with the private commercial bail industry by releasing hundreds of defendants each week, many of whom are charged with violent and dangerous offenses with criminal histories and who are not indigent.  Such programs have grown in size and scope to the point that they are directly competing for the same clients as the private sector at the taxpayers’ expense. 
 
Like so many government programs, taxpayer-funded pretrial services programs tend to proliferate into something that had a finite and noble purpose in the beginning but today have lost their focus.  If someone is arrested for an alleged crime and they have the resources to post a bond for their release, why would we use taxpayer funds to release them instead?  While the truly poor or indigent defendant who committed a non-violent offense languishes in jail.  Who could benefit from government assistance the most?  Today it seems like an affront to someone who has been accused of a crime to actually feel any kind of inconvenience for their release from jail while the victims of the alleged crimes are given little to no assistance.  And a for-profit industry in the criminal justice system, which is highly regulated and licensed, has become maligned and is told it is an insult for taking a small non-refundable premium to secure the release of someone from jail without using any taxpayer funds.
 
There becomes a problem with credibility when proponents are pushing a government release program from jail for everyone regardless of whether an individual can afford to pay for their own release.
 
If non-violent, low-risk offenders can be given a notice to appear, be released on their own recognizance, or released under a taxpayer-funded supervision program, the financial burden to the taxpayer is decreased by saving dollars for daily jail beds.  However, any supervision program must be efficient and effective.  But advocating for the creation or enhancement of taxpayer-funded programs for the release of risker and more dangerous offenders, often using fear and conjecture with elected officials, is fundamentally wrong. 
 
Some people need some type of intervention to get them back on the right path.  Taxpayer-funded programs can monitor certain types of interventions such as drug testing and adherence to anger management classes etc.  But if you are a defendant with a serious drug habit or someone who has a lengthy criminal history, how effective are these interventions at the end of the day in making sure you show up for court and refrain from future criminal activity.  They aren’t. 
 
The private commercial bail industry on the other hand must guarantee that you appear at all required court hearings or the bail agent is financially liable for the full amount of the bond – not just the small refundable premium earned.  No other release system has such financial responsibility.  Significant revenue is also generated for counties and states for every bail bond written in the form of licensing fees, losses and premium taxes.  But such accountability means little to those who seek more of your tax dollars. 
 
Proponents of taxpayer-funded pretrial services systems are now seeking stories on pretrial injustice to further their cause.  They want stories on how the current bail system in America has failed – failed for people arrested for a crime in the criminal justice system.  Stories about a time when money caused the unnecessary incarceration of an individual . . . when a simple risk assessment or preventative detention would have prevented future crime . . . when jails became overcrowded due to unnecessary pretrial incarceration . . . any example of policies or procedures that lead to unsafe, unfair or inefficient pretrial policies.
 

 Pictures of defendants are being used as marketing strategies for more taxpayer dollars to be used to create and grow taxpayer-funded pretrial services programs.  Defendants don’t need to “languish” in jail if their offense and criminal history is one that a judge believes will warrant release on their own recognizance, or a promise to appear at all court hearings.  Judges don’t have to order release under a taxpayer-funded program for such defendants, particularly when supervision is minimal and the authority to find and bring someone back to jail for non-appearance is non-existent.  If they want a guarantee that defendant will appear for court based on their offense and criminal history, they know they can rely on the private commercial bail industry. 

Government vs. private industry:  At the end of the day the question we should all ask ourselves when using limited taxpayer dollars in the criminal justice system is this: do we want a private entity, a small business, individual bail agents who are financially responsible for guaranteeing defendants attend all required court hearings until disposition of their case, to continue to assume this critical role at no taxpayer expense . . . or do we want to put that responsibility on government and the taxpayers?
 
You decide. 

Who Should be Next? Orange County’s Home Confinement Debacle Continues to Force Key Resignations

Garnett Ahern, former supervisor of the Orange County Jail’s Home Confinement program, will be retiring officially May 25, 2013 even though disciplinary action is still pending against her and other employees for not informing the court of the multitude of curfew violations one defendant racked up while being monitored by the program – he is now charged with the alleged murder of Alex Zaldivar who was scheduled to testify against him for a previous burglary and home invasion offense.

Ms. Ahern was found by two internal Orange County reports to have violated policy and procedures regarding the operation of the Home Confinement program and co-workers stated she had pressured them to avoid reporting to the court defendants’ violations of program conditions. 

Specifically one report stated, “At best, Ms. Ahern created a level of acceptance in the eyes of her subordinate staff regarding the allowance of offenders to violate . . . at worst she may have even encouraged it.”  Ahern denied the accusations.

Both internal reports found glaring errors in the monitoring of defendants on home confinement to include improperly completed audits and compliance with program conditions.

Many are pointing fingers as to who is to blame.

Last week Commissioner Fred Brummer and Alex Zaldivar’s dad Rafael, both called for Deputy County Administrator and Public Safety Director Linda Weinberg to be fired.

According to one of the internal reports, the jail’s PIO called Weinberg on September 11 or 12, 2012 shortly after Alex Zaldivar’s death and amid sudden media interest regarding the arrest of Bessman Okafor and what appeared to be an ongoing investigation.  Okafor was supposed to be supervised by Home Confinement staff but it was later learned that he had 109 curfew violations that could have had his pretrial release revoked, but a judge was never informed of the curfew violations.  On the night Alex Zaldivar was murdered and two others seriously injured, Okafor was found to have had a lengthy curfew violation that later corresponded to the time of the murder.

According to statements by the jail’s PIO, Weinberg suggested the PIO contact OPD, who had launched a homicide taskforce and were looking at Okafor as a person of interest, regarding the release of any records on Okafor that might impede their investigation. 

Weinberg, per the internal report, asked for no detail or information regarding the substance of the media requests or why they were being made regarding Okafor or of any issues she should be made aware of.  Despite the ongoing media inquiries, Weinberg stated she was not made aware of any issues regarding the Home Confinement program until earlier this year. 

Perhaps she should have asked.

Commissioner Brummer agrees.  He said in an interview with Channel 9 that, “bells should have gone off,” when the jail’s PIO initially called Weinberg regarding the media interest and OPD investigation.

In speaking of Weinberg, Brummer stated, "That person has to be a good manager. Has to ask the questions, listen to concerns; has to make sure the manager of the corrections division is managing."

Okafor's Home Confinement case manager, Meg Hughes, stated in internal reports that, "We were told we were going to 'work with people' and 'keep our numbers' up so violations for drugs or 'stuff like that' we didn't violate them."

Not holding individuals accountable for their behavior never works – not in the criminal justice system or in life in general.  Particularly when millions of taxpayer dollars are being used to fund a supervision program for defendants charged with dangerous and violent offenses such as Okafor.  Individuals charged with monitoring such defendants must also be held accountable for doing their jobs effectively just as the private commercial bail industry is accountable for guaranteeing a defendant's appearance in court.
 
Too many were found not to be doing so in this case and tragically Alex Zaldivar was murdered.

Leadership starts at the top.  Already the Chief of Corrections and his Deputy have submitted their resignations as well as Ms. Ahern who managed the program.  All have done so immense intense scrutiny of the Home Confinement program and before any formal termination took place.  Disciplinary action will continue with other staff affiliated with the case of Mr. Okafor. 

County Commissioners are wise to continue to ask for answers from high ranking staff and others regarding the truth and functioning of the Home Confinement program and other taxpayer-funded supervision programs.

As taxpayers, we expect nothing less.

The Pretrial Phase in the Criminal Justice System

The pretrial phase of the criminal justice system in America is fortunately very different from other parts of the world, where people are often arrested and improperly detained by law enforcement.  In America however, law enforcement must have probable cause to arrest and detain someone; a reasonable ground for a belief that the accused was guilty of the crime.  The probable cause standard is more important in criminal law because it is used as a basis for searching and arresting people.
 
When people are arrested, they have several options for release pending the outcome of their case based on state statues and laws and if a judge deems the circumstances warrant a release.   Release on a commercial bail bond is one option a defendant may be granted.  Other options include:

• Release on recognizance or a promise to appear for court; 
• Cash bail whereby the defendant puts up the full bond with the court; 
• Unsecured financial release whereby the defendant is released on a promise to appear for court and if they don’t, they must pay the full bond to the court; 
• Cash deposit bail whereby the defendant pays a small percentage of the total bond to the court, which is returned for appearance at all required court hearings; and
• Taxpayer-funded release whereby a defendant is released to be monitored by a pretrial supervision program using tax dollars

A bail bond is an appearance bond; a bail agent is financially responsible for making sure a defendant attends all required court hearings until disposition of their case.  If the defendant fails to appear, the bail agent must pay the court the full amount of the bond.  Such a release system instills personal accountability on the part of the defendant to appear and for others who have pledged collateral for their release.  Bail agents use no taxpayer funds for their services.
 
Those who promote the elimination of commercial bail continue to try and make the taxpayers believe that our pretrial justice system is broken because defendants must either pay bail or wait behind bars for their court date.  Proponents of taxpayer-funded programs claim they save the taxpayers millions of dollars by securing the release of defendants who otherwise would languish in jail without them.  Money is the sole reason that is causing the unnecessary incarceration of the defendant.  Money is stopping them from returning to their family and jobs.  Money is causing jail overcrowding across the country because defendants can’t afford their release. 
 
Defendants should just be given an objective and validated risk assessment so that a judge could release defendants on non-monetary release with conditions to prevent further incarceration.  Such assessment would prevent the unsafe, unfair and inefficient pretrial practices that rely on money bail and cause preventative detention.
 
For non-violent, first-time offenders, that would be a workable solution to keep jail populations in check and to assist defendants to return to their community and hopefully be more productive citizens.  The mantra of proponents of taxpayer-funded release programs is that they provide a vehicle to enforce conditions of release.
 
But what about the fundamental principle that is being ignored by forcing conditions: defendants, who are innocent until proven guilty, are being forced into programs in order to be released from jail.  It is understandable if GPS or electronic monitoring is ordered as such conditions have a direct effect on public safety if the defendant is monitored properly.  But as we have shown throughout our blog postings, it is not only the non-violent, low-risk offender that is being released and supervised on taxpayer funds. 

And is forcing people to take drug tests or enter substance abuse or mental health treatment while they are still considered innocent of the charge they were arrested on a violation of their constitutional rights?  Do you not think defendants feel pressure to accept these conditions if they want to be released from jail on non-monetary means?  Why are such conditions acceptable to force on people while the condition of financial release is seen as greedy?  Such programs charge for their services along with supervision fees that defendants must pay for.  Why is this financial charge acceptable when the charge for a bail bond is not?
 
If convicted of a crime, ordering defendants into substance abuse or mental health treatment, anger management, batterers’ intervention programs etc. is the right thing to do if any of the above lead to the crime the defendant was convicted of.  Treatment and intervention will hopefully help these defendants to be contributing members of their community once released from jail or prison.
 
But too often society has assumed a paternalistic role to force and compel people arrested for a crime into programs before they have reached a trial on their merits or disposition of the merits.  When proponents of taxpayer-funded release systems say that it doesn’t matter if someone is indigent or not or even particularly what crime they are accused of to be eligible for release on taxpayer funds, it begs to question whether society has lost its path of getting back to the fundamentals of what the pretrial stage of the criminal justice system is all about.
 
While defendants should not have unreasonable bond imposed, nor should they have unreasonable societal conditions imposed. 
 
Judges have the authority and discretion to release any defendant on their own recognizance; if financial release is a burden and the defendant committed a non-violent crime, release them that way.  Defendants who have the resources to pay for a bail bond will do so usually within 72 hours.  And the bail agent will financially guarantee that the defendant will appear at all required court appearances.  If not, they pay the full amount of the bond to the court.  The taxpayer is not on the financial hook for that defendant.  The fact is: most people who have been arrested and had their liberty taken away will find a way to post a bail bond. 
 
Taxpayer-funded programs claim that without their services, jails would be overflowing with defendants languishing in jail and taxpayers would pay millions of dollars more than they should to house those defendants.  There are many jails without such programs and they manage to control their jail population through posting of bail bonds and other release mechanisms.  

And then there is discussion about the true cost of housing a defendant.  

Anyone who ever took an economics class understands the difference between a fixed cost and a variable cost.  Fixed costs are those “hard” costs that remain despite the inmate population.  If someone is not in jail on a given day, the power bill still has to be paid.  Upkeep and maintenance still has to occur.  Salaries of employees still have to be paid.  The consumable costs of housing an inmate include such things as food, clothing and healthcare and are usually under $15 per day.  A stark difference from the dollar amount told to taxpayers of up to $150 a day to house a defendant.
 
Like so many government programs, taxpayer-funded release systems can proliferate if not kept in check.  Something that came into existence in the 1960s as a program with a finite purpose today wants to exponentially expand its original purpose.  Today such programs are directly competing with private industry to supervise career and dangerous defendants using taxpayer funds and disregarding many of the very defendants they were created to help – the indigent, poor, non-violent defendants. 
 
There is a need for both a taxpayer-funded release system and the commercial bail industry.  The question we should all ask ourselves is this: do we want a private system with centuries of experience, which is comprised of small business owners, which is financially responsible for ensuring the appearance of defendants at court, which uses no taxpayer funds, to continue to be a viable partner in the criminal justice system – or do we want to put that responsibility on government and the taxpayers?

Violent vs. Non-Violent Offenders: who remains in jail and why

There is a false public perception that jails across the country are overcrowded with people who have committed non-violent crimes and remain in jail simply because they can’t afford a bail bond.
 
A recent article published online in Phillyburbs.com and the Burlington County Times cited a report that found that 40 percent of inmates in the New Jersey jail system remain in jail because they can’t afford bail.  The study was conducted by the Drug Policy Alliance and the national organization Luminosity, both jail reform advocates.
 
Marie VanNorstrand, a senior consultant with Luminosity, Inc., a criminal justice consulting firm specializing in the pretrial stage of the criminal justice system, authored the report.  Ms. VanNorstrand has also been a consultant for the National Association of Pretrial Services Agencies (NAPSA) and the Pretrial Justice Institute (PJI), two national organizations who have called for the elimination of commercial bail.  It is no wonder her report advocated a taxpayer-funded pretrial release system over a financial release system.
 
She is quoted as saying, “The decision to release or detain a person pending trial must be based on the risk the defendant poses to the community and of failing to appear in court.  A pretrial system that provides limited or no alternatives to monetary bail often results in the detention of low-risk individuals who lack resources and the release of high-risk individuals who have resources.”
 
The Times article stated that Burlington County in New Jersey has been able to avoid jail overcrowding by being extremely proactive in their approach to the jail and inmates.  The Burlington County jail like some other jails across the country, also now accepts credit cards for bail.
 
A defendant “languishes” in jail because they can’t afford to post a small premium (usually 10-15 percent of the total bond) with a bail agent but they will charge the full amount of the bond on a credit card and pay the non-refundable fees for the transaction?  They have to be informed they will lose the full bond money if they fail to appear.
 
Why is this type of financial bail acceptable to proponents of taxpayer-funded pretrial release systems when posting bail with a bail agent is not?  Why are they not calling for an elimination of this type of financial release?
 
Jails get a percentage of all bail bonds paid by credit cards from the private vendor managing the process who makes money off a contract with the jail; are the jails and the private vendor then not considered a, “for profit entity,” as commercial bail is?
 
How does this establish accountability in the criminal justice system if anyone, both defendants charged with violent and non-violent offenses, can just swipe a credit card for release?
 
What happens when a defendant who posted their bond by credit card fails to appear?  No one will look for the defendant – not the jail or the private credit card vendor.  It will fall to already overworked law enforcement agencies at more taxpayer expense.
 
Violent vs. non-violent crime
 
Non-violent crimes are generally those that do not involve the use of any force or injury to another person.  The seriousness of a non-violent crime is usually measured in terms of economic damage or loss to the victim.  Most non-violent crimes involve some sort of property crime such as larceny or theft.
 
Violent crimes involve the use of force or injury to the body of another person.  The seriousness of a violent crime is usually determined by the degree of physical harm caused to the victim.  
 
Non-violent offenses may include:

• Most property crimes, such as theft, embezzlement, and receipt of stolen goods, arson
• Fraud, tax crimes, or other “white collar” crimes
• Drug and alcohol-related crimes
• Prostitution
• Racketeering and gambling
• Bribery

Violent crimes may include:

• Assault and battery
• Homicides, including first/second degree murder and manslaughter
• Domestic violence
• Robbery (theft through the use of force)
• Sexual assault and abuse crimes
• False imprisonment

In Florida, dangerous crimes are defined in F.S. 907.041(4)(a) and include the following offenses:

• Arson; 
• Aggravated assault or battery;
• Illegal use of explosives;
• Child abuse or aggravated child abuse;
• Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult;
• Aircraft piracy;
• Kidnapping;
• Homicide;
• Manslaughter;
• Sexual battery;
• Robbery;
• Carjacking;
• Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16 years;
• Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of person in familial or custodial authority; 
• Burglary of a dwelling;
• Stalking and aggravated stalking;
• Act of domestic violence: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member
• Home invasion robbery;
• Act of terrorism as defined in s. 775.30;
• Manufacturing any substances in violation of chapter 893 or attempting to conspire to commit such crime.

So do defendants charged with violent or dangerous crimes only get released on financial means while defendants charged with non-violent crimes just remain in jail?  If you think yes, you would be wrong.

Taxpayer-funded release systems supervise both violent and non-violent offenders; sometimes defendants are released and supervised without even having seen a judge.  Usually defendants are required to pay for drug screenings or treatment and submit to electronic monitoring.  Supervision is supposed to be provided to, “keep tabs on,” these defendants.  Again, monitoring is only as good as those doing the monitoring.

As an example, the home confinement program in the Orange County, FL jail was suspended by Mayor Teresa Jacobs.  Two internal reports found that program supervisors and staff violated the jail’s policies and procedures and failed to address warning flags and curfew violations of a defendant who has been charged with the murder of Alex Zaldivar.  The Chief and Deputy Chief of Corrections submitted their resignations.

Yet, the Orange County, FL jail is still running a taxpayer-funded supervision program in our community that is less stringent than the home confinement program should have been. 

Defendants are being released for both misdemeanor and felony offenses, non-violent and violent offenses, many have lengthy criminal histories, some with failures to appear and violations of probation, many are not indigent and many have been able to pay for financial release for previous arrests.
 
Domestic violence crimes are rising all over the country and in Orange County, FL.  In fact the Domestic Violence/Child Abuse Commission was recently reconvened to address these crimes and solutions to combat them.  Yet each week defendants charged with domestic violence related crimes simply walk out of the jail at taxpayers’ expense.  Does such a release with no financial accountability instill in the defendant that their crime is taken seriously?  What does the victim of domestic violence think?

The bail industry does not make release decisions for those arrested for a crime; we agree the release decision should be based on a defendant’s flight risk and the danger they pose to the community.  Conducting a risk assessment is important and bail agents do so for every bond written.  A bail bond guarantees appearance – at the bail agent’s expense and not the taxpayers.  Taxpayer-funded programs just pass on the costs for failure to appear back to the taxpayer.  Despite false claims that bail agents pass up defendants with low bonds, these very bonds are often the, “bread and butter,” that sustains their bail business.   

If people “languish” in jail because they can’t afford financial release and they truly are not a danger to the community, a judge always has the authority to release that person on their own recognizance and save the cost of incarceration.

The commercial bail industry has always stressed that there is a role for both financial and non-financial release in the criminal justice system.  To be effective and responsible with taxpayer dollars, taxpayer-funded release systems should help those defendants charged with non-violent crimes and who are first-time offenders.  Targeting these defendants would keep them from, “languishing,” in jail and increasing incarceration costs to the taxpayers as is stated to be the current situation in jails all over the country.  Jails should also petition judges to release defendants on their own recognizance if necessary and appropriate. 

However, releasing defendants charged with violent and dangerous crimes, who have prior criminal histories, failures to appear or violations of probation on the taxpayer’s dime has a direct impact on public safety.  At least financial bail instills some accountability on the part of the defendant and with a bail bond, the responsibility of third-party indemnitors.

The commercial bail industry is very interested in improving public safety in our communities and using our tax dollars wisely.  After all - we are taxpayers too.  We gladly want to be a part of efforts to expand ways of reducing jail overcrowding and holding perpetrators accountable.  We are a, “legacy industry,” with a proven business model and a centuries-long track record of efficiency and effectiveness.  

Private competition can be a good thing as long as it protects the community.  Government should have checks and balances in place to ensure they are using public resources efficiently.  And using private commercial bail to help release individuals from jail to keep jail populations in-check and holding defendants accountable for appearance for the court is a good move.

Imagine what our criminal justice system – and the taxpayer’s bank – would look like if all financial release was eliminated and every defendant was released via a risk assessment to be supervised by government employees?

All of us deserve an accountable and equitable system.

Top Resignations at the Orange County, FL Jail

Orange County Mayor Teresa Jacobs held a press conference yesterday to announce the release of two internal reports regarding the investigation in to the suspended Home Confinement program at the jail and the overall Community Corrections Division.

She also announced that Deputy Chief Jill Hobbs and Corrections Chief Michael Tidwell have tendered their resignations coinciding with the release of the internal reports.  Chief Tidwell will remain temporarily to transition to new leadership.

Both internal investigations focused on the actions and practices of the Home Confinement program and the results of both reports indicate that there were violations of the jail's policies and procedures regarding the program.

The internal reports found that practices within the Home Confinement program were accepted/condoned by the Unit supervisor, all of which failed to address the various warning flags particularly in the Bessman Okafor case.  In Okafor's case one of the internal reports found that:

• Staff failed to address nighttime and weekend alerts in a timely manner or at times not addressing them at all;
• Staff failed to conduct administrative hearings when excessive violations occurred;
• Staff were instructed by the Unit supervisor to minimize the number of administrative hearings and to reduce revocations to 'keep the numbers up' regarding caseloads;
• Staff failed to ever confirm with the defendant's phone provider that phone problems created alerts as claimed by the defendant;
• Staff failed to file an order to revoke Okafor's release when he committed a new offense for a failure to appear in Polk County in August 2012, stating that active warrants are not considered to be a new offense; and
• The Unit supervisor agreeing that staff were not handling excessive alerts in accordance with policy yet giving these same staff continuous 100 percent accuracy ratings during monthly audits.

As a result of the internal investigations, two Senior Community Corrections Officers, the Unit supervisor and the Deputy Chief of Corrections were found to have committed numerous policy violations.

Per Mayor Jacobs, these individuals and any others who are alleged to have violated or ignored policies and procedures will be subject to disciplinary action, up to and including termination.

Mayor Jacob stressed her deep commitment to public safety and stated she has assured Chief Judge Belvin Perry, Jr. that the Orange County Jail will have space to house anyone who might be a threat to our community.

We are glad to hear that the county is working with the judiciary to establish a framework to determine who should be eligible for pretrial supervision at the taxpayer's expense.  

A fact that cannot be changed: bad people will continue to do bad things.  We cannot always change or stop that.  

What we can do is work more closely as partners in the criminal justice system.  Community supervision is a tool just as a bail bond is a tool to hold perpetrators accountable.  Just as bail agents must assess the risk of a defendant to determine the posting of bond, anyone released in to a community supervision program must have a thorough risk assessment as well.  And those individuals charged with any responsibility for that defendant must do their job effectively.

Commercial bail ensures appearance of a defendant at court and saves taxpayers millions of dollars annually.  We would welcome the opportunity to partner with the county and the courts in a team effort to promote public safety and the wise use of taxpayer dollars.  

It will be a new day at Orange County Corrections and a refreshing one.

Career Defendants Released on Tax Dollars

It is the intent of the Florida Legislature to create a presumption in favor of release on non-monetary conditions for any person who is granted pretrial release unless such person is charged with a dangerous crime.  Such person shall be released on monetary conditions if it is determined that such monetary conditions are necessary to assure the presence of the person at trial or at other proceedings, to protect the community from risk of physical harm to persons, to assure the presence of the accused at trial, or to assure the integrity of the judicial process.

Dangerous crimes are defined in F.S. 907.041(4)(a) and includes crimes such as acts of domestic violence, stalking, aggravated assault or battery, child abuse, burglary, robbery and abuse of the elderly.

Although this is the intent of the Legislature, the judicial discretion lies with the judge making the release decision.

Discretion is defined as the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives.  Judicial discretion can be very broad and is an aspect of judicial independence.  Judges must make release decisions based on information provided to them at initial appearance that reviews the seriousness of the defendant’s current charge, previous arrest history and convictions, failures to appear, violations of probation, community ties, employment, etc. 

It is a very important decision that affects all of us.  By and far, judges make appropriate release decisions that takes into account the needs of the defendant, victims and community safety.  Non-monetary release can also be appropriate for defendants charged with first-time or non-violent offenses who are truly indigent and don’t have a serious criminal history. 

Taxpayer-funded pretrial services programs were originally created to allow such defendants to be released from jail in a timely fashion.  Such programs make sense when used this way to keep jail populations in check and to allow defendants an opportunity to return to their families and communities for financial and emotional support until disposition of their case.

Non-monetary release funded by taxpayers however is being used more and more for defendants charged with serious offenses, even those defined as dangerous crimes, and with lengthy criminal histories.  We have to question why some of these defendants are released on taxpayer funds in the first place.

Let us give you an example:

Michael Hill has a criminal history dating back to 1988 in Orange County, FL  and has 14 prior felony convictions and 18 prior misdemeanor convictions and many plea agreements on his other charges.  He was charged with contempt of court, possession of cocaine (felony) and possession of drug paraphernalia (misdemeanor) on February 7, 2013 in Orange County, FL.  He has served time in the Florida Department of Corrections and the local jail in Orange County.  He has been arrested for non-payment of court costs and fines and a collection agency has also tried to collect his debts.  He has been declared indigent yet has posted surety bonds in the past as well as remained in jail until disposition of his case.

He was released on taxpayer funds for his arrest charges despite having a lengthy criminal history, failures to appear and violations of probation.  The Orange County, FL jail’s pretrial services program provides supervision to Mr. Hill, which means he calls in to an automated telephone answering system.  Rarely does a judge order weekly face-to-face supervision.

While Mr. Hill was released on taxpayer funds, he committed a new offense of possession of drug paraphernalia and resisting law enforcement without violence.  His pretrial release was revoked and he is currently in jail in Orange County, FL.

Mr. Hill’s criminal history is as follows:

• 4/1988 – petit theft (misdemeanor) and resisting merchandise recovery (misdemeanor) 
• 2/1989 – theft (felony)
• 3/1990 – possession of controlled substance (felony)
• 4/1992 – petit theft (misdemeanor)
• 6/1992 – theft (felony)
• 3/1994 – theft (felony)
• 7/1994 – retail/farm theft (misdemeanor) and resisting law enforcement without violence (misdemeanor); violation of probation
• 5/1995 – theft (felony)
• 11/1995 – possession of controlled substance (felony) and drug paraphernalia (misdemeanor)
• 11/1995 – driving with no valid driver’s license (misdemeanor)
• 1/1996 – petit theft (misdemeanor)
• 4/1996 – theft/2 prior convictions (felony)
• 9/1996 – theft/2 prior convictions (felony)
• 9/1996 – escape (felony)
• 10/1999 – trespass in structure or conveyance (misdemeanor); possession of a controlled substance (felony) and possession of drug paraphernalia (misdemeanor); failure to appear
• 12/2002 – possession of drug paraphernalia (misdemeanor)
• 8/2003 – sexual battery with deadly weapon and force (life); armed robbery with weapon (felony) and false imprisonment (felony)
• 1/2004 – retail theft (misdemeanor) and resist merchandise recovery (misdemeanor)
• 2/2004 – theft/2 prior convictions (felony) and resisting law enforcement without violence (misdemeanor)
• 2/2005 – possession of drug paraphernalia (misdemeanor); failed to appear
• 4/2005 – theft/2 prior convictions (felony)
• 7/2006 – theft/2 prior convictions (felony)
• 1/2007 – driving with no valid driver’s license (misdemeanor)
• 8/2007 – possession of drug paraphernalia (misdemeanor)
• 12/2007 – petit theft (misdemeanor)
• 2/2008 – possession of controlled substance (felony) and possession of drug paraphernalia (misdemeanor)
• 8/2008 – theft/2 prior convictions (felony); violation of probation
• 1/2009 – possession of controlled substance (felony) and possession of drug paraphernalia (misdemeanor)
• 9/2009 – theft/2 prior convictions (felony) and possession of drug paraphernalia (misdemeanor)
• 6/2010 - theft/2 prior convictions (felony); failure to appear
• 9/2010 - theft/2 prior convictions (felony); violation of probation

There are many more individuals released on taxpayer funds that have similar histories to Mr. Hill and/or whose arrest charges shouldn't warrant release on taxpayer funds.  Judges already have the discretion to release defendants on their own recognizance, or their promise to appear for all court hearings until disposition of their case.  But since Orange County Government funds a pretrial services program, Judges have the right to release defendants in to the program thinking the program will adequately supervise them and enforce conditions of release.

For defendants charged with non-violent offenses with minimal criminal history, funding a pretrial services program might be efficient for the county in order to control jail costs.  But they are assuming a huge liability for supervising defendants such as Mr. Hill who have lengthy prior criminal histories.  After all, just look at Orange County’s failed Home Confinement program, which in theory should have had even more stringent levels of supervision than the pretrial services program.  We now know that it didn't.

As taxpayers, we have the right to question such releases as Mr. Hill's and why we are paying for it.

Public policy affects public safety.