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July 28 — A data-driven tool aimed at giving judges a concrete way to determine pretrial flight and re-offense risk is seeing such overwhelming popularity, the foundation that developed it cannot keep up with requests for implementation, according to the organization's vice president.
Almost 30 jurisdictions—including both city, county, and state justice systems—will have adopted the risk assessment tool by the summer of 2016, according to a press release from the Laura and John Arnold Foundation. The foundation has received requests from upwards of 200 jurisdictions looking to incorporate the tool into their systems since the foundation started implementing it, said Matt Alsdorf, vice president of the LJAF.
Jurisdictions that implement the tool receive data collection systems that allow the foundation to analyze the jurisdiction's needs and tailor the baseline tool—developed to fit all jurisdictions on a national scale—to address any specific needs in a locale, Alsdorf explained.
Widespread demand arises from two significant needs in most criminal justice systems, he said. First, almost all states and counties suffer from overcrowded jails that burden county budgets before trial and state budgets after trial, Alsdorf said. As it currently stands, he estimated only about 10 percent of jurisdictions in the U.S. use a pretrial risk assessment tool.
“Most judges are forced to rely on gut or instinct,” he said.
Second, developing the risk assessment tool for a jurisdiction requires the tracking and compilation of data about who goes to jail and any behavioral patterns dealing with re-offending or re-arrest while awaiting trials, which he said most jurisdictions don't track.
“That is a piece of the work that is underestimated,” Alsdof said. “Few jurisdictions could tell you right now things that seem pretty basic, like who's in jail or what percent of defendants are released before trial versus detained in jail. I'd put a lot of money on the fact that they couldn't tell you the answer to that question.”
When the foundation began developing the tool, Alsdorf said staffers examined about 1.5 million cases from across the country. That allowed them to narrow in on nine specific factors that predominantly determine risk levels for not showing up to court, re-offending, and/or committing a violent crime, he said.
When the foundation implements the tool, Alsdorf said it collects data from that jurisdiction's criminal justice system to tailor the tool and factors to address the needs of that specific locale.
Not only does the risk assessment tool cut down on costs, but Alsdorf said it speeds up the pretrial process. Instead of interviewing all defendants, court officials can look at defendants' files, tally up the score sheet, and make recommendations to judges based on that score, he explained.
However, Alsdorf clarified this is not intended to replace judicial discretion.
“It’s not as though a risk assessment comes in and therefore they’re released or detained,” he said. “The judge can see that and take it into account. The judge is always the ultimate decision maker.”
The foundation's only goal is to inspire “the landscape of pretrial decision making to fundamentally change.”
Three states currently use the pretrial risk assessment tool, including Kentucky, Alsdorf said.
Kentucky Circuit Court Judge David A. Tapp—who works in Pulaski County—said his experience using the tool for the past two years has been positive, and that it has proven to be “remarkably accurate.” Within the last 12 months, Tapp said the overall release rate in Kentucky is 73 percent and the appearance rate is 88 percent.
Tapp said it has had a major impact on county budgets as well, taking the cost of housing a defendant in jail—about $10-$30 per defendant, per day—to about $1.90 for community supervision.
When looking at the big picture, Tapp said Kentucky's application of the tool validated the LJAF's conclusions in developing the assessment.
For the most part, Tapp—who also chairs a judicial education board—said he hasn't received any negative comments about the pretrial risk assessment tool and that most judges like it.
Part of that reason might be attributed to Kentucky's long history of using variations of pretrial risk assessment tools that were all eventually invalidated, he said.
What makes the new one from the LJAF different and effective is that it merely aggregates the information judges need from defendants' files into one report, he explained. Tapp also thinks it reduces the risk of implicit bias affecting judges' decisions.
“It doesn’t do anything except make the process a little smoother,” Tapp said. “I think judges have pretty good intuition overall, but that’s a terrible way to make decisions overall.”
Criminal law practitioners differ on the effectiveness of the risk assessment tool.
Eddy Montgomery, a prosecutor in Pulaski County, said he doesn't like the LJAF's tool.
“I think it's unscientific mumbo jumbo,” he said. “I don't think there's any science to it.”
Montgomery said he has been a prosecutor for 20 years and thinks the tool is replicating the process Kentucky already had in place.
“You’re replacing one person’s guess with another’s,” he said. “There’s no adequate predictor out there to say, ‘This is what one person is going to do.' It's guesswork.”
Ultimately, Montgomery said it's more of a “chicken-or-egg” argument. He said he couldn't be sure whether reductions in jail populations could be attributed to the pretrial risk assessment tool or pressure from lawmakers to reduce the population.
Emily Reed, a directing attorney with the Pulaski County Public Defender's Office, said she has seen a distinct shift in how judges rule on pretrial release since Kentucky adopted the LJAF's tool. Reed thinks the pretrial risk assessment scores give judges peace of mind on releasing defendants back into the community.
“It's not just a defendant saying it; there's something that backs it up,” Reed said. “The judge can say, ‘This is evidence.' It's scientifically reliable.”
She said she has also seen a reduction in judges setting bonds since the risk assessments show that many defendants will likely appear for court and not re-offend during the waiting period. Releasing defendants also allows judges to impose conditions on release, like substance abuse or mental health treatments, with the reassurance that supervising law enforcement officers can ensure the defendants are cooperating, she said.
“It's not a fly-by-night idea,” Reed said. “There's meat behind the statistics.”
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