The Jefferson County Bail Project:

The Jefferson County Bail Project: Project Summary Presented to the Attorney General s National Symposium on Pretrial Justice Timothy R. Schnacke, Michael R. Jones, Claire M.B. Brooker, and Hon. Margie L. Enquist* May 23, 2011 This paper briefly describes an ongoing endeavor in Jefferson County, Colorado, to investigate legal and evidence-based practices in the administration of bail, to collaboratively discuss the philosophical underpinnings of perceived improvements, to test certain key assumptions, and then to implement changes that the criminal justice system agrees are essential to pretrial justice. Following a structured policy planning process model, the Jefferson County Criminal Justice Strategic Planning Committee transformed a criminal justice system immersed in the traditional money bail system into one that is more transparent and rational, more focused on fairness, public safety, and accountability, and less reliant on money. The local justice system made this transformation collaboratively, through a rigorous educational process, and with no changes in the law. The process that it used, and the research it has produced, can hopefully assist other jurisdictions seeking to achieve their own pretrial justice goals. 1 Introduction In 1951, the United States Supreme Court equated a non-capital defendant s right to bail to the traditional right to freedom before conviction and the right to release before trial. 2 Echoing this now oft-forgotten axiom, Justice Douglas wrote in his concurrence that [t]he practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. 3 In 1987, the Court uttered its most recent, and likely most-repeated phrase, In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. 4 Today, however, America finds itself in a troubling situation. Over 60% of the nation s jail 1 The authors thank the members (and other participants) of the Jefferson County Criminal Justice Strategic Planning Committee and the members (and other participants) of that Committee s System Performance Subcommittee for undertaking this complex, yet important endeavor. We also thank those in Larimer County, Colorado, and especially Gary Darling and Sharon Winfree, whose work provided inspiration and encouragement. 2 Stack v. Boyle, 342 U.S. 1, 4 (1951). 3 Id. at 7-8. 4 United States v. Salerno, 481 U.S. 739, 755 (1987). 2011-05-23 The Jefferson County Bail Project Summary.doc 1 Printed: 5/24/2011

population consists of defendants awaiting their trials, and approximately 85% of those defendants have financial conditions set on their bail bonds in unattainable and often arbitrary amounts. Liberty, it appears, is not the norm, and our current administration of bail presents a disturbing paradox to the criminal justice system; that is, bail, a process created and molded over time to facilitate the release of criminal defendants from custody as they await their trials, today often operates to deny that release. Criminal justice systems across America are rapidly discovering this paradox. Whether tackling jail crowding, solving budget crises, or merely deciding to embrace legal and evidence-based practices in their justice systems, local jurisdictions are finding themselves faced with issues implicating pretrial justice. While these issues are complex, and can at times seem daunting, most can be addressed and overcome simply through education, collaboration, and a willingness to change. The Jefferson County Bail Project provides evidence for this notion. Until very recently, Jefferson County was accustomed in the traditional money bail system. Persons not arrested on a no-bond hold were typically assigned a cash/property/surety bond with an amount based on top charge pursuant to a money bail schedule (often in thousands or tens of thousands of dollars). Persons who could afford to pay that amount were released without seeing a judge or being assessed by the Pretrial Services Unit for risk to public safety or for failure to appear for court. They received no supervision, and their conditions of release, if any, were reported to be minimally altered at subsequent court hearings except in response to new crimes or failures to appear while on bond. Defendants who could not pay the scheduled amount (as well as defendants on no-bond holds) were assessed for risk and remained in jail until first advisements, which occurred only on non-holiday weekdays. Because judges did not typically modify the scheduled bond amounts, however, many of those defendants remained in jail awaiting their trials for lack of money. Throughout the process, consideration of the financial condition of any particular bail bond was paramount, and, as in other jurisdictions immersed in the money bail system, commercial bail bonds were the norm. And there were other issues. First advisement practices were hurried, lacked defendant representation, and focused mostly on articulating rationales for either keeping or deviating from the scheduled amount. While the state statute mandated individualized bail determinations, the typical bail setting suggested a more generalized routine, with judges setting cash, property, or surety bonds in some stated amount of money often corresponding to the bail schedule, coupled with pretrial services supervision in nearly every case. There was some discussion of risk of flight or to public safety, but virtually no discussion about which set of non-financial conditions should be used to respond to that risk. Money amounts were often set under the assumption that money helps to protect public safety, an assumption not supported by research, best practice standards, or even Colorado law, which itself permits money bond forfeitures only for failure to appear. While no one in the criminal justice system would outwardly argue against a philosophy embracing the presumption of innocence and favoring release under least restrictive conditions, the system s apparent philosophy (the philosophy that appears to outsiders to reflect the guiding principles of the justice system) projected presumptions of guilt and detention on a single, highly restrictive condition money. 2011-05-23 The Jefferson County Bail Project Summary.doc 2 Printed: 5/24/2011

Today, however, and to the credit of those who lead the Jefferson County criminal justice system, much of this has changed. Approximately four years ago, those leaders initiated a process of educating themselves on legal and evidence-based practices at bail, of describing existing issues, desired outcomes, and options for improvements to the administration of bail, and of periodically testing its hypotheses based on shared goals. That process involved extensive background research, investigation of that research by a committee having diverse criminal justice membership, the creation of two pilot projects, analysis of data from those projects, and ultimately a vote by the key justice system decision-makers to implement several recommended changes. Overall, the criminal justice system in Jefferson County, Colorado, has changed from a system accustomed to money at bail to one that is questioning its continued relevance. It has changed its mindset and even its vocabulary. It has furthered pretrial justice, and through the course of its examination it has done so without observable or intolerable decreases in public safety or the integrity of the judicial system, and without changes in state law. The Jefferson County Bail Project is a process, and as a process it will continue to lead to system improvements based on further monitoring of pretrial issues in criminal cases. Nevertheless, when comparing the County s administration of bail today with the process in place only months ago, the authors of this paper consider the Bail Project to be a local success. The remainder of this paper briefly describes how the County got from there to here. Why Was the Project Done? County Budget Impetus As a result of projected budget shortfalls, in 2007 Jefferson County, Colorado, began a comprehensive review of its departments and government functions with an eye toward increasing efficiency and reducing costs. Its review of the Justice Services Division s Criminal Justice Planning (CJP) Unit led to discussions about how that Unit could help to identify criminal justice projects that might promote a safe and just system at some reduced cost. A Justice Oversight Committee was subsequently created to look into these projects. That Committee, comprised of the Chief Judge of the Judicial District, the Chief Probation Officer, the Justice Services Director, the Sheriff and Undersheriff, the County Administrator, the County Budget Director, the Court Administrator, and the District Attorney agreed on seven projects designed to assist the County reach its goals. One of those seven projects was simply titled, Pretrial Release/Bonding/Supervision, and was designed to answer the primary question, What changes can be made to current pretrial release/bonding practices to increase revenue, decrease costs, or decrease jail bed use. At the time, the group appeared somewhat unfamiliar with the intricacies surrounding pretrial release and bonding practices. Nevertheless, it was aware that: (1) the county s jail population had been increasing at an unsustainable rate, and that talks had begun to address the need for an expansion of the jail: (2) the number of inmates on pretrial status represented at least half of the jail s population; and (3) while jail housing costs were about $70 per day, it only cost about $2 per day to monitor and supervise any given defendant in the community. Most of the group also expressed a general awareness that a money-based system of bail was perceived as inherently unfair. 2011-05-23 The Jefferson County Bail Project Summary.doc 3 Printed: 5/24/2011

Justice System Interest Meanwhile, the topic of bail was gathering attention from the criminal justice system as a whole. Since 1995, Jefferson County has had a justice system coordinating committee, the Criminal Justice Strategic Planning Committee (CJSPC). By 2007, the CJSPC was thinking about pretrial release and bonding as a system-wide issue that required examination for reasons in addition to the County s budget. Accordingly, that year it articulated a strategic goal to review and modify, if necessary, pretrial release/bonding practices. Being the more inclusive and permanent group, the CJSPC ultimately took primary control over examination of the pretrial issue, with the understanding that it would also consider County budget concerns. The answer to the question of why the Project was done seems simplistic, but is an honest assessment that likely reflects a national trend. In the authors collective opinion, the criminal justice system did the Project because that system had a vague notion that it wasn t necessarily doing things as well as it could be doing them, and that if it looked into the issue, the system would likely see that there were cost-effective improvements that could be made to bonding and pretrial practices. What Did the Researchers Do, and What Did They Find? Initial Research The first meeting of the subgroup designed to look into the pretrial/bonding issue generated mostly questions, and CJP staff s notes reflected the diverse and complicated nature of those questions. People wanted to know about Colorado s bail statute and possibly its legislative history. There were questions about state and federal case law, including opinions from the U.S. Supreme Court. People asked about other jurisdiction s practices. Someone thought the American Bar Association had weighed in on the topic. There were general questions about how we got to where we were, implicating research into the topic s general history. They asked about data on supervision techniques, both federal and local, and about the practices of the bail bonding and insurance industries. These were all important questions to answer, but CJP staff knew that doing so would take time. Accordingly, the group suspended further meetings until CJP staff could research and produce a summary document attempting to answer the group s queries. For six months, CJP staff researched issues surrounding the administration of bail and pretrial release and detention. The resulting document, A Proposal to Improve the Administration of Bail and Pretrial Release in Colorado s First Judicial District, was released internally in June of 2008, and broadly in February of 2009 after editorial changes. 5 At 124 pages long, and with nearly 500 footnotes, the paper was a fairly dense read, but still somewhat easier to digest than the scores of lengthy primary source documents used to produce it. This bail paper had two background sections in addition to the introduction a limited glossary and a section on the history of bail and pretrial release. Those sections have been re-drafted and expanded for a national audience, and are currently available from the Pretrial Justice Institute. 5 That document is available from Jefferson County Criminal Justice Planning Staff, who may be located through http://jeffco.us/cjp/index.htm. The authors of this paper believe that the document can be used as a template for other local or state jurisdictions to identify and assess their varying issues in pretrial justice. 2011-05-23 The Jefferson County Bail Project Summary.doc 4 Printed: 5/24/2011

The third major section of the paper was devoted to our local law. If a glossary provides us with a common vocabulary, and a history section provides us with a common frame of reference (both necessary for work in bail reform), then a section on our state and local law provides the parameters within which we can work. At the time, CJP staff did not reflect on the desirability or rationality of any particular law. Since then, however, staff has learned a great deal about other states laws, rational or not, and has put that knowledge to use in substantive discussions concerning our own legal landscape. The fourth major section of the bail paper was the main substantive section. In it, CJP used the national best practice standards on pretrial release (at the time, those published by the American Bar Association, the National Association of Pretrial Services Agencies, and the National District Attorneys Association) to weave a procedural path through a typical defendant s criminal case. In doing so, staff (1) identified current practices, (2) compared those practices to the national standards and existing research, and then (3) made recommendations for improvements. For example, initial issues in pretrial justice occur at arrest, and so the bail paper summarized current practices and made recommendations based on the national standards for using police citations versus arrests, and for using bench summonses versus arrest warrants. At the back end, the bail paper summarized issues and made recommendations concerning bond reviews, as well as for allocating resources to efficiently direct cost savings into supporting local practices based on legal and evidence-based methods for achieving pretrial justice. Committee Study The paper was comprehensive, and designed to be used as a reference document for all future discussions. Recognizing now that education is key to American bail reform, the authors believe that creating this foundational research document was critical to the Jefferson County Bail Project s success. Nevertheless, it was only the start, as the CJSPC read the paper and began a lengthy process of study, which included philosophical talks, debates, and discussions over trial runs of various recommended improvements. While the national standards were used as a benchmark in that paper, the Committee s discussions delved deeper into the reasons behind the standards, and whether they made sense when held up to the local system s current practices and notions of public safety, etc. During those discussions, Committee members also worked on certain concrete elements that found immediate consensus. Many of the most important recommendations in the initial bail paper required judges to have unqualified confidence in the local pretrial services program, and so the Committee worked for over a year on enhancing that program s responses to defendant violations and its overall management of defendant behavior while on supervision in the community. Many important discoveries during this time led to immediate implementation of processes designed to better reflect the system s goals. For example, when Committee members learned that occasionally defendants ordered to GPS monitoring were being released from jail without a monitor and then were not showing up for their pretrial supervision intake, judges began holding those defendants at the jail until they could be fitted with the monitor. The work was time consuming but fruitful. Accordingly, at roughly the same time the Committee was completing its work with the pretrial services program, the judges announced that they were 2011-05-23 The Jefferson County Bail Project Summary.doc 5 Printed: 5/24/2011

ready to try out some of the other recommended improvements from the bail paper, such as holding weekend advisements and fostering a presumption of release on recognizance. As an aside, the authors again reiterate the judges important role in bail reform. The crux of the administration of bail is the actual decision to release or detain a defendant, and it is (or should be) solely the judge s province to make that decision, weighing public safety and concerns about court appearance with personal liberty and other constitutional principles. A jurisdiction can create a highly effective and efficient pretrial services program, but underutilize it as a result of judges setting unattainable cash, property, or surety bonds. Thus, it was especially important as a criminal justice system to move at the speed most comfortable to the bench. In some jurisdictions, judges have thwarted bail reform by simply refusing to engage in the process, while in other jurisdictions, judges have acted to improve the administration of bail unilaterally, forcing the rest of the system to try to adapt. Jefferson County purposefully attempted to take a more systemic and collaborative approach. In the spring of 2009, the judges announced that they were willing to try a fourteen-week pilot project, which was designed to measure the impact of certain changes to the administration of bail in Jefferson County. At the same time, the Jefferson County Justice Services Division successfully applied for a Byrne/Justice Assistance Grant from the Colorado Division of Criminal Justice to help fund the proposed bail pilot. As articulated in the grant application, the two substantive changes to the administration of bail proposed for study included that: (1) defendants would be unable to bond out using the predetermined money bail bond schedule, and would be able to bond out only after being assessed for risk to public safety and for failure to appear, and only after being seen by a judge for an individualized bail determination; and (2) judges would set bail using more personal recognizance and low cash bonds in combination with pretrial supervision, and using less surety (for reasons articulated in the initial bail paper) and high cash bonds for most defendants, except for those defendants considered to be too high risk. The Pretrial Pre-Pilot Project Logistics for the proposed pilot project proved to be complicated, so the Committee decided to conduct a one-week test run of many of the contemplated system changes. Leading up to that test run, CJP staff attended initial advisements for six weeks in order to obtain baseline bail-setting data. The one-week test run, unofficially named the Pretrial Pre-Pilot Project, was completed in October of 2009. A document containing CJP staff s analysis of the seven total weeks of advisements (six weeks of baseline data and one week of pre-pilot test data) described the system as seen in the first six weeks as one that was accustomed to the traditional money bail system and dominated by prosecutor arguments, which focused mostly on rationales for financial conditions of release and which relied primarily upon the monetary bail bond schedule for requesting money amounts. Moreover, during the six weeks, defendants had no representation, and their arguments at bail were often irrelevant and tended to focus on case merits. Finally, during that time most of the bail bonds were set in a cash/surety option (virtually ensuring the use of commercial sureties), and judges routinely coupled pretrial services supervision with the surety bond option, a practice specifically disfavored in the national standards on pretrial release. The experimental week, however, was dramatically different. Overall, observation of the oneweek pre-pilot period revealed a criminal justice system largely following the national standards 2011-05-23 The Jefferson County Bail Project Summary.doc 6 Printed: 5/24/2011

on pretrial release as well as Colorado law mandating individualized bail determinations by a judge. While persons arrested over the weekend were still allowed to bond out using the money bail schedule, they were assessed by Pretrial Services before they left, thus assuring that the system would have some indication of their risk for later study. For the rest of the week, all defendants were assessed and seen by a judge, who endeavored to follow a procedure that minimized unnecessary detention, presumed release on recognizance, increased reliance on nonfinancial conditions of release, and dramatically reduced the use of financial conditions. The focus for the week changed from attempts to primarily associate money amounts with risk to attempts to find the optimal set of non-financial conditions to manage risk. The two-fold purpose of bail was frequently articulated, and often set the parameters of the specific bond arguments made by the deputy district attorneys and public defenders. Unlike the previous six weeks, the attorney arguments during the seventh week appeared to place more emphasis on the pretrial risk assessment, as well as on statutory factors, exceptions, and limitations versus amounts of money. The overall quality of the bond arguments appeared good, with all parties clearly understanding the goals of the pre-pilot project. The largest influence on the quality of the arguments appeared to be the public defender s new role in advocating for felony defendants, and in instructing misdemeanor defendants as to what factors the judge would consider in setting their bonds. Also in contrast to the previous six weeks, during the pre-pilot project week defendants were more often given personal recognizance bonds with non-financial conditions of release. While financial conditions of release were still necessary due to statutory requirements or other factors, those conditions were typically in amounts tied to some tangible reference (e.g., one-quarter of the defendant s stated monthly household income), which followed the statutory mandates that the amount shall not be oppressive and must include consideration of a defendant s financial condition. The untested nature of the new procedure may have led to some initial reluctance to wholesale change from the traditional money-based system; however, by the end of the week, there were tangible signs that all parties were adapting to it. The numbers for that week are revealing. Out of 79 defendants assessed for bail determinations, 31 (or 39%) were given personal recognizance bonds, as compared to only 12% of all cases observed during the previous six weeks, and 22 (or 28%) were given financial conditions of less than $1,000. Due to the new procedure of initially setting no-bond holds during jail book-ins Monday through Friday until the defendant saw a judge (per the suspension of the bond schedule), there were relatively few instances where defendants already had bond amounts set that would be subject to modification at first advisement (e.g., warrants). In those cases, the deputy district attorney recommended the current financial condition be left in place 100% of the time, but the judge set financial conditions lower than the recommended amounts 83% of the time (in two of those cases the judge converted cash/property/surety bonds to personal recognizance bonds, and in one case the bond amount technically remained the same when the judge converted a $10,000 cash/property/surety bond to a $10,000 personal recognizance bond). Of the 73 defendants held without a bond until their first advisement before a judge during the pre-pilot period, the deputy district attorneys still made specific money bail recommendations in 2011-05-23 The Jefferson County Bail Project Summary.doc 7 Printed: 5/24/2011

67% of the cases. Of those recommendations, the judge set the financial conditions: (1) equal to the recommendation 24% of the time (as opposed to 63% in the prior six weeks); (2) greater than the recommendation 4% of the time (as opposed to 1.3% in the prior six weeks); and (3) less than the recommendation 71% of the time (as opposed to 35% in the prior six weeks). Of course, these two groups of defendants are likely qualitatively different because no-bond holds placed on defendants during the seventh week covered a significantly wider array of offenses than during the previous six weeks. To the extent that this pre-pilot week was intended to show that system improvements to the administration of bail were even possible, then it was a considerable success. Nevertheless, it illuminated several issues requiring attention before the justice system could undertake the full fourteen-week pilot project. Accordingly, the Committee moved forward to iron out the details of the project, which was ultimately named the Bail Impact Study (the Study). The Bail Impact Study Chief Judge Order 2009-09 authorized the Study to commence in January 2010. According to that order, the overall purpose of the Study was to measure whether better adherence to the national standards on bail and pretrial release, as well as to state and federal law, would impact the criminal justice system s ability to reasonably manage the risk to public safety and for failure to appear for court posed by defendants during the pretrial phase of their cases. The hypothesis behind the Study was that better adherence to the law and national standards would result in acceptable outcome measures surrounding the two risk variables. This purpose and hypothesis thus required analyses of the data on two fronts: (1) changes showing better adherence to the law and the standards (i.e. process measures); and (2) what the effect of the changes were on public safety and court appearance (i.e., outcome measures). Of course, changes in the way that a particular jurisdiction administers bail will also result in impacts to the various individual criminal justice agencies with a stake in bail setting. While not formally measured during the Study, these impacts were discussed at length by the various system participants, and were weighed with the knowledge that system improvements often lead to some perceived agency disruption. These additional impacts included, for example, resource requirements (e.g., the number of people required to make any particular change), case flow impacts (e.g., how changes in bail setting affected defendant guilty pleas, public defender appointments, returns for filing of charges, and preliminary hearing processes), and other, less quantifiable justice system impacts (e.g., judge, attorney, and other criminal justice system actors comfort levels with various changes). Major changes to the administration of bail for the fourteen-week Study included the following: (1) suspension of the money bail bond schedule and other delegated release authority, with all defendants arrested for new crimes being held until they saw a judge; (2) assessment of all defendants arrested for new crimes by the pretrial services program for risk of failure to appear and to public safety; (3) weekend advisements; (4) public defender representation of felony defendants (state statute disallowed representation on misdemeanor offenses, but the public defender gave those defendants global instructions concerning bail); (5) implementation of different protocols for the Detention Facility and the Court Clerk s Office staff to facilitate the various changes; (6) changes to protocols of pretrial supervision; and (7) use of a new process 2011-05-23 The Jefferson County Bail Project Summary.doc 8 Printed: 5/24/2011

and schedule, guiding judges toward making meaningful release and detention decisions that follow legal and evidence-based practices, including decisions surrounding money at bail. Due to the scope of the new procedures, the number and type of substantive changes chosen for study by the Committee, and several additional questions that the Committee wanted answered, the CJP and Pretrial Services Units collected a great deal of data. Moreover, due to the nature of the new procedures, data collection included attempts to quantify several difficult-to-quantify concepts. For example, American Bar Association Standard 10-5.3 states that financial conditions of release should not be set to prevent future criminal conduct during the pretrial period or to protect the public safety of the community or any person. This standard, and others like it, focus on the reasons for doing an act. Accordingly, some data collection methods were designed specifically to attempt to quantify these reasons. Finally, some data were collected simply to answer particular Committee questions about the bail-setting process. For example, because the question of the frequency of victim input at advisement was raised, CJP designed data collection methods to answer that particular question. As another example, because several people raised the issue of commercial sureties acting as bounty hunters, CJP staff collected separate data on that function. The results of that entirely separate survey, which polled police chiefs, examined jail booking data, and surveyed court clerks, indicated that the function in Jefferson County was greatly exaggerated, with bondsmen or bounty hunters helping to apprehend defendants who have skipped court in less than one-half of one percent of the cases studied. Overall, Jefferson County CJP and Pretrial Services staff collected data on over 300 variables for over 1,200 cases during the study period, including advisements from fourteen weeks, thirteen weekends, and two Monday holidays. To the extent possible, data from the fourteen-week Study were compared to data collected during the six-week observation baseline portion of the Pretrial Pre-Pilot Project performed several months prior. Mid-Study Observations At the midway point of the Study, CJP staff produced a document articulating observations from the first seven weeks of advisements that were designed to help system actors approach the second seven weeks. As one might expect from any document produced about bail, this one focused primarily on money, as well as the need for judges to make meaningful release and detention decisions. In it, CJP staff wrote: As the enclosed article by John Clark points out, 6 many of the problems associated with traditional bail setting for most defendants can be solved by tak[ing] money out of the equation, which can be done by following national standards such as the American Bar Association s Standards on Pretrial Release (see ABA Standards 10-1.4, 10-5.1-5.3). As noted in the bond schedule issued for the Study (see Chief Judge Order 2009-09), that means using financial conditions (or money amounts) only as a last resort, only when no other condition or combination of less restrictive conditions will ensure the defendant s appearance in court, and never to respond to concerns of public safety. 6 Clark, John, Solving the Riddle of the Indigent Defendant in the Bail System, Trial Briefs (Oct. 2007) at 31. 2011-05-23 The Jefferson County Bail Project Summary.doc 9 Printed: 5/24/2011

To move from a largely arbitrary, money-based bail system to an individualized, risk-based bail system, judges setting bail must answer the following question: Is this defendant someone who should remain in jail or be released pending trial? To answer this question, the judge must determine whether that defendant s risk to public safety and for failure to appear in court is manageable within the community and outside of a secure facility. All defendants pose some risk the question is whether that risk is manageable. Some defendants pose such a high risk that they are unmanageable in the community (no condition or combination of conditions of a bail bond can assure the court of public safety and/or court appearance). However, the majority of defendants pose risks that are manageable outside of the jail. The decision to release a defendant from custody or to detain that defendant during his or her pretrial period is solely the judge s decision, and that decision should not be left to forces beyond the judge s control. Accordingly, once the decision to release or not release a defendant is made, judges should be sure that nothing they order unnecessarily hinders that decision. In a money-based bail system, financial bail bond conditions (i.e., amounts of money) are typically the conditions that impede a judge s intention to release or not release a particular defendant. Bail Impact Study Process Data A preliminary summary of process measures and data for the entire Bail Impact Study is contained in a separate document (the Process Data Paper), but highlights include observed substantive participation in the Study. For example, during the six-week baseline period in 2009, judges set personal recognizance (PR) bonds in 14% of the cases. During the Study, judges set PR bonds in 30% of the cases. Moreover, during the baseline period, prosecutors recommended release on personal recognizance bonds in 9% of the cases. During the Study, however, they recommended PR bonds in 16% of the cases. During the fall baseline period, cash-only bonds were never used; prosecutors recommended, and judges set cash-only bonds in exactly zero percent of the cases. 7 During the fourteen-week Study, however, prosecutors recommended cash-only bonds in 20% of cases, and judges set cash-only bonds in 35% of cases. Moreover, there was a substantial drop in the percentage of surety option bonds set during the Study. In the fall of 2009, judges set bonds with a surety component in 76% of all cases. During the Study, however, judges included surety components in only 32% of all cases. Prosecutor requests for surety bond options also dropped somewhat, from 58% in fall 2009 to 51% during the Study. Because Colorado law requires judges to set money amounts on all bail bonds, a further indicator of substantive participation is the variation of those amounts. On this issue, the numbers varied between the prosecutors and the judges. In the fall of 2009, the average amount requested by the 7 The somewhat unique nature of Colorado s bail statute (e.g., requiring money amounts and limiting release on recognizance) necessitates making more use of cash-only bonds as a rational way to effectuate the judges bail decisions, and thus cash-only bonds may be considered an indicator of participation. 2011-05-23 The Jefferson County Bail Project Summary.doc 10 Printed: 5/24/2011

prosecutors for surety option bonds was $18,720 (modal amount was $10,000). During the Study, the average amount requested remained relatively unchanged at $18,968, and the modal amount was still $10,000. In the fall of 2009, the average amount that judges set on surety option bonds was $8,006 (with a modal amount of $10,000). During the Study, the average amount set on a surety option bond was increased to $10,247, but the modal amount was only $1,000. Additional process variables tracked and/or observed during the Study included the judges responses to warrants, the degree to which bail hearing discussions focused on non-financial conditions versus money, the judges rationales for setting particular types of bonds, defendant and lay representatives arguments, the number of times judges coupled pretrial services supervision with a surety option bond, the amount of time taken in each hearing, substantive attorney arguments (and whether those arguments added relevant bond information to the decision-making process), and victim input and attendance. The remainder of the Process Data Paper identified issues requiring additional system discussion and consensus, using the format of issues originally identified in the initial bail paper spanning the entire period between arrest and case disposition. Overall, the Process Data Paper concluded that participants in the Study showed observable progress toward implementing policies based on best practices as reflected in the national standards, but that there was still much room for improvement. The authors also discussed three perceived obstacles to improvement: (1) system perceptions that release on recognizance was still a lenient response to certain alleged crimes, despite the use of numerous non-financial conditions coupled with that type of release; (2) system comfort with and habitual use of practices associated with the traditional money bail system; and (3) the inevitable inconsistency resulting from inclusion of so many different participants (multiple judges and attorneys) in the bail-setting process. Bail Impact Study Outcome Data The process data was helpful in showing better criminal justice system adherence to the research, the national standards, and the law, and many of these improvements stood on their own merits, without the need for outcome data. For example, given that Colorado s statute mandated an individualized bail assessment, judges were likely to abandon the monetary bail bond schedule the antithesis of individual assessments based on legal arguments, and not on social science research. Nevertheless, the justice system wanted to make a reasonable attempt to see that outcome measures of court appearance and public safety were not intolerably affected by following a new process for the administration of bail. When a sufficient percentage (80%) of cases reached disposition, CJP staff summarized data surrounding four main outcome measures: (1) court appearance, measured directly by counting defendants attendance at court events after initial bond posting; (2) public safety, measured by proxy by counting defendants new arrests or court filings; (3) other bond condition compliance, measured directly, by counting defendants technical violations of bond; and (4) jail use, measured by proxy, by counting the time spent in jail between bond setting and bond posting. There were notable limitations to the outcome portion of the Bail Project. One limitation, albeit naturally occurring in criminal justice, is that the Study was not, and could never be a controlled experiment. Because of that, the Study was never defined as a study that would show statistical significance or causation, or any other social science term of art. Indeed, the name of the Study 2011-05-23 The Jefferson County Bail Project Summary.doc 11 Printed: 5/24/2011

the Bail Impact Study was developed only after the Committee recognized that all it might be able to assess was perceived subjective impact on various system agencies. Given the nature of bail and the critical importance of the administration of bail and pretrial release, the Study could only do what the criminal justice system leaders hoped it would do: that is, put in place certain perceived improvements and document an assortment of things to make sure that the impacts were tolerable. Looking back, the Bail Impact Study was only a small, albeit significant part of the larger Bail Project s overall process of education. Another limitation involved the length of the Study. Jefferson County s bail-setting judges perform advisements and bail settings on a rotating basis, operating a Duty Division for one week and setting bail for all cases arising during that week. The fourteen-week limit on the Study was largely determined by the seven judges who set bail, as they agreed to try the new process for only two rotations. A third limitation came from the acknowledgement of complete judicial discretion during the Impact Study. Judges were told that despite the goals of the Study, they could set bail as they saw fit, which theoretically could have resulted in literally no change to measure. Nevertheless, judicial discretion at bail is sacrosanct, and the researchers believed (correctly) that individual variations among judges could lead to at least some meaningful comparison using a quasi-experimental design. Full judicial discretion also meant that judges could order pretrial services supervision as a condition of bond in every case, and indeed during the Study judges ordered supervision at a very high rate. The rate was so high, in fact, that the number of defendants not ordered to supervision was too small for comparison analyses. Thus, the researchers measured outcomes only for defendants who had posted bond and for whom pretrial services supervision was ordered. During the fourteen weeks, as is done normally, cases were given to the Duty Judge as those cases were filed, and thus were randomly assigned. Nevertheless, the caseloads varied in a broad sense by the number of felony versus misdemeanor matters assigned, so the researchers limited the pool of judges to those with comparable distributions of felony to misdemeanor cases. From those judges, two were chosen who were most different in their bail-setting practices one used practices more aligned with the national best practice standards (favoring release on recognizance and using fewer commercial surety bonds) and the other less aligned with the national standards (using more commercial surety bonds and less release on recognizance). Despite the differences in practices (one judge set PR bonds 52% of the time and surety bonds only 16% of the time, compared to a judge who set PR bonds 37% of the time and surety bonds 35% of the time), the defendants showed no notable differences in either their court appearance rates (approximately 97% for both judges) or their no-new-arrest/filing rates (86% for both judges). For reasons unknown to the researchers, technical bail bond violations were higher for persons with bonds set by the judge using practices further from those endorsed by the national standards (48% versus 37%). The jail bed use outcomes, however, were notably different. Defendants seen by the judge using practices further from the national standards took over two times longer to post bond. Broadly, the local jail use data reflected the national data (and objective state analysis done by Colorado s bipartisan Legislative Council), which indicates that the addition of an up-front money amount to a bail bond (i.e., a secured bond) means that defendants will take longer to post bond, and that some will never post bond at all. In Jefferson County, for all cases that were closed by the end of 2011-05-23 The Jefferson County Bail Project Summary.doc 12 Printed: 5/24/2011

September 2010 and were open four or more days, regardless of whether they were ordered to supervision, 98% of defendants with PR bonds posted that bond in less than one day, and two percent did not post at all. Defendants with cash bonds or commercial surety bonds took longer to post (3.4 days for cash, and 6.9 days for surety) and were less able to post at all (32% of defendants with cash only bonds never posted, and 53% of defendants with surety option bonds never posted). Committee Deliberation and Recommendations Outcome data from the Bail Impact Study was an important part, but still not the final part of the overall discussion of bail in Jefferson County. After much deliberation, system stakeholders were asked to individually rate items articulating particular areas for improvement, and to provide detailed commentary for each item. The individual ratings did not necessarily reflect what the stakeholders felt about the national standards on bail and pretrial release, but instead reflected whether they agreed with certain improvements based on their education in the field of bail, their philosophical discussions with one another, their debates concerning the social science research and legal arguments surrounding the issues, the process and outcome data generated by the Bail Impact Study, and their independent knowledge of the impact of making certain improvements in their various agencies. CJSPC Action In November 2010, the Committee found, through legal and social science research (e.g., the Bail Impact Study), that the... administration of bail is currently driven by a mixture of riskbased and cash-based (i.e., secured bonds) determinations, but also found, during the 14-week Bail Impact Study, that movement toward a less cash based system (consistent with Colorado law and maintaining full judicial discretion) with enhanced pretrial risk assessment and supervision resulted in no observable difference in public safety or court appearance outcomes. These local findings are consistent with national research. The Committee then agreed by a near unanimous vote with only one dissent (the District Attorney) to request CJSPC member agencies to consider making changes to the administration of bail based on the stakeholder ratings and commentary, and to authorize the creation of a small implementation team to consider the work of the [Committee] as a basis for further examination of risk assessment..., individualized bond settings, and pretrial supervision, and to work through the programmatic and operational changes that would need to occur prior to any implemented changes. Bail Implementation Team After the CJSPC vote, Chief Judge Brooke Jackson created a Bail Implementation Team. Members included both a county court and district court judge, the Chief Probation Officer, the Detention Division Chief of the Sheriff s Office, the Justice Services Director, the Court Services Manager, Pretrial Services Unit staff, the Court Clerk and her staff, a division clerk, the Office Head of the Public Defender s Office, and a Senior Deputy District Attorney. Based on the extensive work of that team, on March 23, 2011, the Chief Judge signed Order 2011-02, which essentially made permanent most of the improvements examined in the Bail Impact Study. The preamble to that order stated as follows: 2011-05-23 The Jefferson County Bail Project Summary.doc 13 Printed: 5/24/2011

WHEREAS, the District and County Court Judges for the First Judicial District are committed to increasing public safety and the integrity of the judicial system through increased pretrial supervision of offenders on bail bonds, maintaining high court appearance rates, as well as to improving the law, the legal system, and the administration of justice; and WHEREAS, the Jefferson County Criminal Justice Strategic Planning Committee voted overwhelmingly to pursue improvements to the administration of bail believed to be consistent with legal and evidence-based practices identified through a three and one-half year period of study of the criminal pretrial process; and WHEREAS, these improvements represent significant movement toward adherence to best practice national standards on the administration of bail and the pretrial process; NOW THEREFORE IT IS ORDERED THAT: Starting at 4:00 a.m., Sunday, April 3, 2011, the monetary bail bond schedule, established by previous Chief Judge Orders, will be terminated. In its place, judges will refer to the Process and Schedule for the Setting of Bail Bonds, attached to this Order. Like the process and schedule used for the Study, this new process and schedule created an alternate mechanism for assessing defendants, holding first advisements, and providing community supervision, which was guided by an overall system philosophy that supported individualized, risk-based bail determinations with less emphasis on money. For the most part, the permanent changes mirrored the Study s temporary changes: (1) elimination of the money bail bond schedule and other delegated release authority, with all defendants arrested on new crimes held until they are seen by a judge; (2) assessment of those defendants by the pretrial services program for risk to public safety and for failure to appear; (3) weekend advisements (albeit only one day per weekend); (4) felony defendant representation by the Public Defender s Office; (5) implementation of different protocols for the Detention Facility and the Court Clerk s Office staff to facilitate the various changes; and (6) changes to protocols of pretrial supervision. In addition, because money at bail still presented a significant issue, the Implementation Team created a new process for reviewing the bonding status of incarcerated defendants and for reporting that status back to the bail-setting judge. Most notably, however, is a change in mindset one that represents progress toward embracing a philosophy favoring a presumption of release on recognizance with appropriate non-financial conditions crafted to provide reasonable assurance of public safety and court appearance. These are significant changes to the administration of bail in our jurisdiction, and a dramatic shift from participating in, and thus perpetuating, the traditional money bail system. Implications for Public Policy Other jurisdictions can easily replicate the work done in Jefferson County to educate its criminal justice system actors, identify potential issues concerning pretrial justice, and then implement improvements based on shared goals. While the Jefferson County Bail Project took nearly four years to reach its goal of making significant concrete changes to the administration of bail, other 2011-05-23 The Jefferson County Bail Project Summary.doc 14 Printed: 5/24/2011

jurisdictions can undoubtedly move at a faster pace using what is now becoming a burgeoning research base. Already in Colorado, multiple counties are using this research (including that generated by the Bail Project) to move at varying speeds to implement much needed pretrial improvements. Conclusion On April 3, 2011, almost four years to the day that the County s Justice Oversight Committee identified pretrial release and bonding practices as issues to examine, the criminal justice system in Jefferson County, Colorado, officially implemented concrete improvements to the administration of bail based almost entirely on the examination of legal and evidence-based practices in the field. Moreover, it made these improvements as a system, using the structure of a criminal justice coordinating committee, its staff, and a data/research-guided policy planning process to guide its work. Because of this, the authors of this paper believe that the Jefferson County Bail Project represents success at the local level, and we are thus pleased to present it at this Symposium. The Jefferson County Bail Project cannot easily be labeled. Much of it involved simply (but exhaustively) educating system actors in what we now know now is an extremely complex field. The more educated those actors became, the more they saw the need for reform, and the more willing they were to act. To many, the Project represents an altered mindset about pretrial justice that comes from simply taking the time to consider the intricacies of bail. To borrow from a recent National Institute of Corrections initiative titled Evidence-Based Decision Making in Local Criminal Justice Systems, the Project perhaps represents the recognition that things can be improved incrementally, and that although we must be modest and realistic in attempting those improvements, we must act, because in the absence of informed action, nothing will change. To the authors of this paper, the Jefferson County Bail Project is a rebuttal to those who say that the criminal justice system is immutable, and the Project will serve as a symbol of hope for those seeking bail reform and pretrial justice in America. * Timothy R. Schnacke is a Criminal Justice Planner/Analyst for Jefferson County, Colorado. Prior to his work with the County, Tim worked as Assistant Professor at Washburn University College of Law, as Staff Counsel to both the Tenth Circuit Court of Appeals and the Colorado Court of Appeals, and in private practice in Washington D.C. Tim received his Juris Doctor degree from the University of Tulsa, his Masters of Laws Degree from The George Washington University s National Law Center, and his Master of Criminal Justice Degree from the University of Colorado at Denver. Tim also serves as a part-time consultant for the National Institute of Corrections. Michael R. Jones is the Criminal Justice Planning Manager for Jefferson County, Colorado, where he supervises six criminal justice planning/analytic or project management staff. Mike is also a Senior Project Associate for the Pretrial Justice Institute, the nation s only nonprofit organization dedicated to ensuring informed pretrial decision-making for safe communities, and he also serves as a part-time consultant for the National Institute of Corrections. Mike s work 2011-05-23 The Jefferson County Bail Project Summary.doc 15 Printed: 5/24/2011

primarily involves planning and implementing coordinated initiatives and improvements in all areas of the criminal justice system. He has worked with several other national criminal justice organizations in numerous jurisdictions across the United States. Mike received his Ph.D. in Clinical Psychology from the University of Missouri-Columbia. Claire M. B. Brooker is a Criminal Justice Planner/Analyst for Jefferson County, Colorado, and the primary data collector and analyst for the Jefferson County Bail Project. Her prior experience includes work as a Legislative Auditor for the State of Colorado. Claire received her Bachelor s Degree in Political Science from St. Norbert College and her Master s Degree in Public Policy from the University of Colorado at Boulder. Judge Margie Enquist was appointed to the District Court bench for the First Judicial District of Colorado on January 1, 2005. She received her Juris Doctor degree from the University of Minnesota Law School, graduating magna cum laude. Prior to her appointment to the bench, Judge Enquist was a Deputy District Attorney for the First Judicial District, handling felony cases, with a focus on crimes committed against children. As a District Court Judge, her caseload is comprised of civil, criminal, and domestic relations matters. Over the course of her career, Judge Enquist has provided training to law enforcement academies and continuing legal education seminars to attorneys. For the past three years, Judge Enquist has worked with her District s Criminal Justice Strategic Planning Committee to reexamine the way that the District sets and administers criminal appearance bonds and provides pretrial supervision. 2011-05-23 The Jefferson County Bail Project Summary.doc 16 Printed: 5/24/2011