Minutes. Pretrial Justice Working Group Criminal Justice System Subcommittee March 20, 2012

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1 Minutes Pretrial Justice Working Group Criminal Justice System Subcommittee March 20, 2012 Meeting Participants: Sarah Joy Albrecht, Public Welfare Foundation Kim Ball, Bureau of Justice Assistance Shima Baradaran, American Bar Association Task Force for Pretrial Reform Cherise Burdeen, Pretrial Justice Institute John Clark, Pretrial Justice Institute Doug Colbert, University of Maryland School of Law Sarina Cox, American Bar Association Cabell Cropper, National Criminal Justice Association Chief Bernadette DiPino, International Association of Chiefs of Police Bill Dressell, National Judicial College Lori Eville, National Institute of Corrections Stephanie Garbo, Pretrial Justice Institute Jack Hanna, American Bar Association Alissa Huntoon, Bureau of Justice Assistance Mike Jones, Pretrial Justice Institute Peter Kiers, National Association of Pretrial Services Agencies Jason Lamb, National Association of Prosecutor Coordinators David LeBahn, Association of Prosecuting Attorneys Deborah Leff, Access to Justice, U.S. Department of Justice Will Marling, National Association for Victim Assistance Jane Messmer, American Bar Association Greg Mize, National Center for State Courts Ed Monahan, American Council of Chief Defenders Judge Truman Morrison, Pretrial Justice Institute Mary Anne Mowatt, American Probation and Parole Association Timothy Murray, Pretrial Justice Institute Norm Reiner, National Association of Criminal Defense Lawyers Susie Shaffer, DC Pretrial Services Agency JoAnne Wallace, National Legal Aid and Defenders Association Lisa Wayne, National Association of Criminal Defense Lawyers Scott West, General Counsel, Kentucky Public Defender s Office Robin Wosje, National Judicial College Webinar Recording: Cherise Burdeen convened the meeting by thanking the Public Welfare Foundation for the use of its facilities to hold the meeting, welcoming participants, and leading introductions. The meeting is recorded and will be available along with the Subcommittee s materials at the Pretrial Justice Working Group s web site at

2 Kim Ball of BJA thanked everyone for their participation in the meeting and noted that the work of the implementing recommendations coming out of the National Symposium on Pretrial Justice, which was held last summer in Washington, DC, would require the joint efforts of the groups represented at the meetings of this group and the other two subcommittees. She noted that even though Laurie Robinson has left her position as Assistant Attorney General in charge of the Office of Justice Programs, her replacement, Mary Lou Leary, is just as dedicated to seeing the recommendations of the National Symposium become reality. Kim also noted that an effort that has already started has been to educate judges about pretrial justice. The Bureau has formed a Pretrial Justice Judicial Council, comprised of a number of judges from around the country who will have their first meeting next month. She said that this is the start of a three- year plan to work with judges on pretrial justice issues. Cherise noted that the Criminal Justice Subcommittee is one of three subcommittees of a Working Group formed after the National Symposium on Pretrial Justice to begin the process of implementing the recommendations made by the Symposium participants. The other two subcommittees, Research and Communications, had their first meetings last week. The purpose of these subcommittees is to expand participation of stakeholder groups beyond those represented on the Working Group to advance evidence- based practices in pretrial. She noted that pretrial justice encompasses much more than the bail decision made by the court right after someone has been arrested, but spans additional events that occur during the pretrial process, such as citation release, early screening by prosecutors, early involvement by defense, and early decisions about diversion and participation in specialty courts. She referred participants to the web page on the National Symposium, which can be found at for more materials relating to the Symposium, including the proceedings report. She said that the expectation is to have quarterly meetings of each subcommittee, and at some point, if there is a lot of overlap in the subcommittee discussions, the subcommittees may be merged. She noted that several participants had been asked in advance to give five- minute presentations on what their stakeholder groups have been doing in the area of enhancing pretrial justice at this first meeting, and that others will be asked to give similar updates at subsequent meetings. After getting caught up on what is going on, the idea is that the meetings will be focused more on action agenda items and less on hearing about what each stakeholder group is doing. Shima Baradaran gave the first presentation. She talked about her work with the ABA Pretrial Reform Task Force, where she and task force members put together a short frequently asked questions document that could answer questions that lawyers often have about bail and pretrial release. This document is now on the ABA web site. She said that she has received some positive reception from people who have used the document.

3 Jack Hanna said that the ABA has established the State Policy Implementation Project, which has identified five policies that the association believes can save jurisdictions money, keep people safe, and improve criminal justice. One of those five policies is pretrial justice reform. He noted that they have targeted 10 states for this project. Another part of the project has been to sponsor roundtable discussions at law schools to focus on aspects of the five policies. He said that one was recently held in Florida and another one is planned for Texas, both focusing on pretrial risk assessment and pretrial justice reform. He also talked about a grant application that his office applied for last year. These are ABA grants that divisions within the association compete against one another for. The application his office submitted last year was for pretrial justice reform. The application won the competition, but the money dried up before it could be awarded, so the project was never funded. He said that the application was submitted again this year and he should hear something by June. The project would create a Bail Reform Tool Kit that would have a template for an economic analysis of bail so that state and local jurisdictions can assess the costs associated with holding defendants who cannot make bail. Tim Murray discussed the plans of the Conference of Chief Justices and Conference of State Court Administrators to develop a White Paper on Pretrial Justice. He said that he and Judge Morrison had met with Chief Judge Eric Washington, current president of the Conference of Chief Justices, who identified pretrial justice as an important theme of his presidency, and that Chief Judge Washington was clear that the White Paper will be the beginning, not the end of efforts, to involve the judiciary in pretrial justice reform. Doug Colbert described a study done in Maryland that showed that defendants who were represented by counsel at bail hearings were two- and- a- half times more likely to be released on recognizance than a similar group of defendants who were not represented. Moreover, those defendants who had a financial bond set were two- and- a- half times more likely to have the bond set at an affordable amount when they had legal representation than when they do not. He also talked about a case that was recently decided by the Maryland Court of Appeals. The Court unanimously ruled that indigent defendants must be represented by counsel at their initial bail setting hearing. The Maryland legislature is currently considering bills that would negate that ruling, concerned about costs. The bills would provide for representation at the second hearing, which takes place two- to- five days after the first. Scott West discussed a new law that went into effect in Kentucky last year making sweeping changes in pretrial release. Included among the changes are that a defendant must be given a recognizance or unsecured bond if they are found through a risk assessment to be low or moderate risk to offend or flee. Under another provision of the law, some crimes are presumptively probatable, and defendants who are charged with these crimes must be released pretrial. The state s Public Defender s Office is working with its public defenders to push to make sure that these laws are being followed, including by filing appeals. He said that in the eight months since the law was passed, the office has filed 50 appeals, winning about a third, losing about a third, with the final third mooted because defendant were getting out pending appeal. The office hopes that there will be a body of published opinions that will firmly support the legislation. He said that his office has also

4 been involved in a marketing campaign, with staff speaking at local bar associations, trying to get a change in attitude on the idea of the presumption of innocence that without pretrial release the presumption of innocence is meaningless. Ed Monahan said pretrial release rates are rising in Kentucky since the law went into effect and failure rates have stayed the same. He also mentioned that his office is trying to set up studies such as those done in Maryland showing empirically the value of having representation at the initial bail hearing. In his role as head of the American Council of Chief Defenders, he described the Policy Statement that the association released last June on fair and effective pretrial practices. The document calls on public defenders to be engaged in improving pretrial practices in their own jurisdictions, and in developing pretrial litigation strategies. Lisa Wayne described the resolution just passed by the National Association of Criminal Defense Lawyers a couple of weeks ago. The resolution addresses the importance of having counsel at the first appearance, and urges all states to adopt laws to guarantee that all defendants have representation at that hearing. Norm Reiner noted that advocacy to getting counsel at first appearance been going on for long time. The resolution, he said, makes it the formal policy of NACDL. He noted that the resolution also addresses hearings where pretrial liberty may not be an issue, such as when defendants are weighing whether to plead guilty or enter a diversion program. He noted that NACDL is working to push the defense bar nationally to demand evidence- based practices. Peter Kiers described the recent activities of the National Association of Pretrial Services Agencies. He noted that the Association is in the midst of doing an accreditation program for pretrial services programs, which will start in 2013, which the association expects will strengthen pretrial services programs and give them an opportunity to assess their own strengths and weaknesses. The association also runs a certification program for pretrial services program staff, to aid in their professional development and to assure that they are well versed in pretrial standards. In addition, the association, in conjunction with the National Institute of Corrections, is planning a Pretrial Diversion Symposium, scheduled for May in Washington, DC. He said that the association s annual conference is in August in Washington, DC. Kim Ball recognized the Pretrial Justice Institute for laying the groundwork for making pretrial justice reform a national issue, and the various stakeholder for passing resolutions supporting pretrial justice reform. She said that the Bureau of Justice Assistance is committed to working with judges, prosecutors and defense to educate them about pretrial justice reforms. She talked again about the National Pretrial Judicial Council, and mentioned a plan for fellowships for prosecutors and defenders. While the details of such a fellowship need to be worked out, they would probably involve having prosecutors and defenders take some time away from their duties to look at issues at more of a national perspective and then represent prosecutors and defenders on a national level. She

5 mentioned that victims and law enforcement should also be part of BJAs longer term plans on working with key stakeholders. Lori Eville described the work of the National Institute of Corrections in the area of pretrial justice. She said that the NIC Advisory Board has established pretrial justice as one of its priority issues for this year. NIC runs a four- day, intensive training session for pretrial executives twice every year, averaging about 15 participants each session. The sessions cover the legal foundations of pretrial, pretrial standards, performance measures, and managing the message. Noting that one problem that pretrial services has faced has been a lack of uniformity in the way that performance measures for pretrial services programs are defined, she stated that NIC published a document, Measuring What Matters, that provides a standard way fro pretrial programs to look at their outcomes and performance. In addition, NIC provide responsive technical assistance to jurisdictions looking to assess, evaluate, or improve their pretrial release practices. Also, NIC has been running the Evidence- Based Decision Making Project in seven counties, which looks at the whole system and what evidence supports decisions all along the way, including at the pretrial stage. She noted that much is being learned in this project that can inform what this subcommittee is doing. Cherise closed the meeting stating that PJI will be in touch with the subcommittee members about the next meeting.

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