Personal Liberty and Community Safety Pretrial Release in the Criminal Court THE PLENUM SERIES IN CRIME AND JUSTICE Series Editors: James Alan Fox, Northeastern University, Boston, Massachusetts Joseph Weis, University of Washington, Seattle, Washington CONTEMPORARY MASTERS IN CRIMINOLOGY Edited by Joan McCord and John H. Laub CRIMINAL INCAPACITATION William Spelman DELINQUENCY CAREERS IN TWO BIRTH COHORTS Paul E. Tracy, Marvin E. Wolfgang, and Robert M. Figlio PERSONAL LIBERTY AND COMMUNITY SAFETY Pretrial Release in the Criminal Court John S. Goldkamp, Michael R. Gottfredson, Peter R. Jones, and Doris Weiland RACE A ND THE JURY Racial Disenfranchisement and the Search for Justice Hiroshi Fukurai, Edgar W. Butler, and Richard Krooth RAPE LAW REFORM A Grassroots Revolution and Its Impact Cassia Spohn and Julie Homey A Continuation Order Plan is available for this series. A continuation order will bring delivery of each new volume immediately upon publication. Volumes are billed only upon actual shipment. For further information please contact the publisher. Personal Liberty and Community Safety Pretrial Release in the Criminal Court John S. Goldkamp Temple University Philadelphia, Pennsylvania Michael R. Gottfredson University of Arizona Tucson, Arizona Peter R. Jones Temple University Philadelphia, Pennsylvania and Doris Weiland Crime and Justice Research Institute Philadelphia, Pennsylvania Springer Science+Business Media, LLC Librar y ofC ongress Cataloglng-ln-Publicatlo n Data Personal libert y andc ommunity safet y : pretria l releas e I n th e criminal court / John S. Goldkanp .. . [e t al.l . p. ci . — (Plenum serie s I n crime and justice ) Includes bibliographica l reference s and index. 1. Pre-tria l release—Flor Ida—Miam.i 2. Bal1 —F lor Ida —M iami. 3. Preventiv e detention—Florida—Miami. 4. Pre-tria l release - -Arlzona—Phoenix. 5. Ball—Arizona—Phoenix. 6. Preventiv e detention—Arizona—Phoeni.x I .G oldkamp, John S. II . Series . KF9632.P84 1995 345.73'072—dc20 [347.30572] 95-15677 CIP ISBN 978-1-4613-5736-0 ISBN 978-1-4615-1821-1 (eBook) DOI 10.1007/978-1-4615-1821-1 €> 1995 Springer Science+Business Media New York Ursprünglic h erschienen bei Plenum Press, New York 1995 10987654321 All rights reserved No part of this book may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming , recording, or otherwise, without written permission from the Publisher To the memory of Otto G. Goldkamp his love and support are dearly missed Foreword The past 30 years have seen many attempts to reform the process that determines pretrial release or detention of the criminal accused in our court systems. Driven by concerns about fairness and equal treatment, reform efforts sought to lessen the disparity between outcomes received by defendants who were able to purchase their freedom and those who remained in jail simply because of their inability to post the required bond. Not surprisingly, at least to those working in the criminal courts, the vast majority of detainees were from the lowest socioeconomic strata of society, causing reformers to claim that the use of money bail was effective only in insuring detention of the poor and had little demonstrated ability to assure defendants' appearance in court-then arguably the only recognized legitimate goal of bail. Modeled after the Vera-prototype of the 1960s, some jurisdictions developed pretrial services programs to aid the courts in deciding which defendants could be released at little risk under nonfinancial terms. Eligi bility criteria adopted by these programs were often based on "community ties," reflecting the concept that defendants who were employed and had stable residences and good reputations in the community would not flee from their court appointments and could be released without financial conditions. Ironically, while this approach appeared eminently reasonably to the middle-class reformers who proposed it, it had little relevance to the type of person most commonly processed by the criminal courts. These defendants often had no jobs, no good record of employment, no stable residence, no upstanding community members to vouch for their reliability, and little education. In short, just as they were unlikely to be able to post very low amounts of cash bail, they were also unlikely to receive high community-ties ratings to earn recommendations for release on personal recognizance (nonfinancial release). The inhumane jail conditions that sparked the first reform efforts in New York City in the early 1960s were not notably improved by the jail crowding that grew to major crisis proportions in many American cities during the 1970s and 1980s. These conditions are still severe in the 1990s vii viii Foreword as various policies, particularly relating to drugs, have added pressure to confine defendants at the local level. Communities that previously have shown little interest in bail reform now are facing expensive campaigns to build new jails. Some jurisdictions-like Miami and Phoenix, subjects of this book-have experienced more than one generation of costly con struction, quickly discovering the adage "once built, soon filled." The search for alternatives to incarceration at the local level soon focused on the pretrial population because defendants held pending adjudication often made up half or more of persons confined in the local jail. In pretrial release processing, efforts focused on nonfinancial release strategies. Numerous pretrial release agencies and methodologies were funded in hopes that expensive jail construction could be avoided in exchange for effective management and supervision of released defendants. Again, most of these efforts uncritically centered on the community ties yardstick, sometimes using specific release conditions to address what were seen as attributes of defendants linked to the likelihood of failing to appear in court. Increasingly, criteria for "excluding" defendants from release options were added based on the nature of charges, prior arrests, and other factors viewed as relating to risk. As some progress was made in the design of release options and the deployment of nonfinancial release approaches, the public safety agenda traditionally underlying bail prac tices became the focus of greater attention. Crime by defendants on pretrial release became a sensitive political issue as many states and the federal system adopted preventive detention laws aimed squarely at concerns for defendant "dangerousness." Efforts aimed at insuring the appearance of defendants in court through effective use of nonfinancial release options were overtaken and outpaced by single-minded emphasis on community safety. Despite much research showing that prediction of future crime was very difficult and that the criteria associated with the new preventive detention laws were poor predictors, the detention-for-danger move ment gained momentum and increased-rather than limited-the use of local confinement. Given these broad developments, it is no surprise that in many places local administrators began to reexamine their basic assumptions in op erating pretrial release programs and systems. The concept of risk became increasingly important and the community-ties driven approach to rating defendants' eligibility to release options was seen by many not only to be inadequate but also increasingly irresponsible. Not only did such measures failure to reduce the discriminatory impact of bail practices, they did not serve as useful indicators of likely risk of flight or crime among defendants. Moreover, it was becoming increasingly evident that, without a central involvement by judges in review and improvement of Foreword ix pretrial release and detention decision practices, what court programs or agencies did about pretrial release would have little impact. This is precisely the situation I confronted when, as a recently ap pointed head of the pretrial services program in Miami, researchers Gold kamp and Gottfredson arrived in town to discuss the possibility of using research to examine pretrial release and detention fundamentally and to develop a resource for assisting the judiciary in restructuring and manag ing its decisionmaking in this area. After adjusting to the nervousness with which I viewed such no-holds-barred research, I entered into what would be a productive working relationship for the Dade County courts and for me personally as the administrator responsible for pretrial release. Together, a judicial working group identified areas of release and deten tion decisionmaking to be addressed by the research and collaborated in the development of pretrial release guidelines to shape judicial deci sionmaking, management of release options, and review of confined de fendants in the Dade jail. The research was a resource for tailor-made local problem solving that helped pinpoint areas in need of correction and for development of an information approach that took into consider ation the need to plan release alternatives to correspond to the risks and problems of Dade felony defendants. In this specific approach to problems of pretrial release, I was introduced to a research-supported method for dealing with other areas of criminal justice functioning which would later prove valuable. As ground-breaking as the guidelines research process was, the im plementation process faced serious difficulties as the research neared its final stages. Issues relating to judicial discretion in release decisionmaking and political realities pose major challenges to fundamental reform, as, after all this time, the history of bail reform has demonstrated. This experi ence is well detailed in the chapters of this book and has important lessons for all interested in court and justice system improvement. Was the guidelines approach a success? Readers will draw their own conclu sions. As a local administrator in Miami, I saw both the promise of the method and its impact as a catalyst for moving decisionmakers away from traditionally held concepts regarding bail, release, and detention and toward more rational and better managed procedures. The guidelines research process served as a critical forum for the local judicial and justice community to come together to work on difficult problems as part of a problem-solving team. The guidelines process in Miami opened the door to the notion that policies and practices in the local justice system could be examined and revised based on a solid assist from this sort of policy relevant research; more recently, I have seen the results and benefits of this research process applied to the development of Miami's treatment x Foreword drug court for felony defendants and its domestic violence court innova tions. However the pretrial release guidelines in Miami fare, the lessons of the useful role of research in policy development and improvement of practice have been learned. TIMOTHY J. MURRAY, Director Office of Substance Abuse Control for Metropolitan Dade County Dade County, Florida Preface In 1968, Herbert Packer wrote that "the more we learn about the Is of the criminal process, the more we are instructed about its Ought and the greater the gulf between Is and Ought appears to become."! This captures well a fundamental lesson of our cumulative research experience investi gating bail practices in several major urban jurisdictions over a period of a decade. Careful examination of the "Is" in the inquiry into court practices we describe underscores the great gap yet separating current practice from the basic ideals announced by bail reform in the early 1960s and earlier. Indeed, it has been more than 70 years since the powerful critique of bail practices in Cleveland by Felix Frankfurter and Roscoe Pound and 67 years since Arthur Beeley raised fundamental questions about the jailing of poor defendants in Chicago. Perhaps it was Caleb Foote who four decades ago most eloquently depicted and questioned the unbridled exercise of discretion by judges and magistrates at bail in his devastating and now classic study of bail practices in Philadelphia. The most frequent target of critics of American bail practices was the role of cash bail in pretrial release determinations which produced a system that discriminated among defendants on the basis of their ability to raise cash. Today, despite many revisions of state and federal law in this area, cash bail is still the principal device employed by judges and commissioners to cause the detention of defendants who are awaiting trial. Judges and magistrates still use dollars to divide defendants into two classes of accused-the confined and the released. Added to concerns about inherent economic discrimination associated with cash-for-release practices is the fact that for those who wish to escape prosecution, the reliance on cash bail guarantees that, for a price, freedom can be pur chased. Contrary to conventional wisdom, cash bail has never been shown to be a deterrent to offending by defendants during the period of pretrial release; in fact, some have argued that the use of cash bail encourages 1. Herbert L. Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968), p. 150. xi