judge’s role in setting bail margie enquist, district court judge
TRANSCRIPT
Judge’s Role in Setting Bail
Margie Enquist, District Court Judge
Judge’s obligations• Uphold the law / Constitutions
• Due Process and Presumption of Innocence• Release is the norm; detention the exception
U.S. v. Salerno• N.M. Const. art. II, § 13 / U.S. Const. amend VIII
• Bail may not be excessive• Limited preventive detention
• Individualized bail determination Stack v. Boyle• Least restrictive conditions Rule 5-401 NMRA
• State v. Brown
Liberty• Appropriately significant safeguards at back end of system
• Jury trials• Unanimous verdicts• Presumption of innocence / Proof Beyond a Reasonable Doubt• Right to counsel• KIV guilty pleas
• Shouldn’t we give at least as much attention to the front end?• Presumed innocent / Probable Cause• Majority are released back into the community after plea
• Or conviction
Why does it matter? Short term
Correlated with recidivism: When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours. When held 4-7 days, it increases to 50 percent
When held 8-14 days, it increases to 56 percent
Failures to appear increased incrementally as well
• High-risk defendants’ performance unaffected by detention length
• Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (http://www.arnoldfoundation.org/research/criminaljustice).
Why does it matter? Long term
Correlated with recidivism: When held 2-3 days, low-risk defendants are 17 percent more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours. When held 4-7 days, the rate increases to 35 percent
When held 8-14 days, the rate increases to 51 percent
High-risk defendants unaffected
• Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (http://www.arnoldfoundation.org/research/criminaljustice).
Impact of Pretrial Incarceration
*Lowenkamp, C.T., VanNostrand, M., & Holsinger, A. (2013). The Hidden Costs of Pretrial Detention. Laura and John Arnold Foundation. New York City, NY.
2-3 Days 4-7 Days 8-14 Days0%
10%
20%
30%
40%
50%
60%
39%
50%56%
Increase in New Criminal Arrest
Low-Risk Defendants*
2-3 Days 4-7 Days 8-14 Days0%
10%
20%
30%
40%
50%
60%
17%
35%
51%
Increase in 2-Year Re-cidivism
Low-Risk Defendants*
Why does it matter? In sentencing
• For those detained until trial• 4x more likely to be sentenced to jail
• And for a 3x longer sentence
• 3x more likely to be sentenced to prison• And for a 2x longer sentence
• Laura and John Arnold Foundation Pretrial Criminal Justice Research Summary (November 2013) (http://www.arnoldfoundation.org/research/criminaljustice).
How did I get into this?
• Deputy District Attorney • Appointed to the bench in 2004• Local criminal justice subcommittee• That’s where I experienced a paradigm change
Jefferson County Bail Project• What did we do?
• In early 2010, ran a 14-week pilot project• Encouraged bond setting based upon evidence-based practices
• Eliminated money bond schedule• Assessed all Defendants for risk• Held all Defendants until they saw a judge (weekends)• Prompted less surety and more personal recognizance (PR) or
low cash bonds, and more pretrial supervision• Defendants represented (at least in felony cases)• District Attorney present
• Staff collected data so we could measure outcomes
Jefferson County Bail Project
• What did we find?• Bond type affected length of time in jail
• <1 day for PR bonds• 7 days for cash bonds• 9 days for surety bonds
Jefferson County Bail Project
• What did we find?• Bond type affected how many people posted
bond• 97% for PR bonds• 64% for cash bonds• 51% for surety bonds
Jefferson County Bail Project
• What did we find?• Use of money bonds did not
• Enhance court appearance • Enhance compliance with other bond
conditions• Have any measurable impact on public
safety
Jefferson County Bail Project
• What was the result?• Eliminated the money bond schedule• Advisements continue 6 days / week
• All Defendants undergo a risk assessment• All seen by a judge• DA/PD present for advisements
New Colorado statutes• Presumption of release• Individualized bail determination
• Type of bond• Money just another condition • Must consider financial condition of Defendant
• Impose least restrictive / tailored / reasonable conditions• Avoid unnecessary pretrial incarceration• Empirically developed risk assessment / evidence-based practices• IF bond schedule – incorporate individualized risk / conditions
• 7-Day hearing • Public Defender initiative
Rule 5-401(C) Factors• Nature and circumstances of offense charged
• COV / narcotic drug• Weight of evidence• History and characteristics of person
• Character / physical and mental condition• Family ties• Past / present residences• Length of residence• Strong ties to community• Possibility person will commit new crimes• Past conduct, drug and alcohol abuse, criminal history, FTA• On probation, parole, or pretrial / other release
• Nature and seriousness of danger to community• Any other facts indicating person likely to appear
“…defendants who are high-risk and/or violent are often released… nearly half of the highest-risk defendants were released pending trial.”
-Developing a National Model for Pretrial Risk Assessment, Laura & John Arnold Foundation
Why Pretrial Supervision?
• Moderate- to high-risk defendants who are supervised are less likely to fail to appear• Moderate (38%)• High (33%)• Inconsistent findings for low risk
• Research shows there may be some decrease in future recidivism but too early to tell• Laura and John Arnold Foundation Pretrial Criminal Justice
Research Summary (November 2013) (http://www.arnoldfoundation.org/research/criminaljustice).
Risk Mitigation
• Preventive detention
• GPS
• Stay away order
• Curfew
• Travel restrictions
• Prescribed contact/supervision
• Court reminder
Risk
Lev
el
Low
High
Level of Supervision/Monitoring
State v. Jones and Rule 5-401• Hierarchy of release options
• Personal Recognizance• Unsecured appearance bond• Cash deposit bond (percentage)• Property bond • Surety bond / full cash deposit
• Whenever possible, dispense with requirement of financial security
• Or make specific, written findings• Nonfinancial release options
• Will not reasonably assure appearance• Will endanger safety of other person or community
• Additional nonmonetary conditions• Duty to tailor conditions
2013 Conference of Chief Justices
“…urge . . . the adoption of evidence-based assessment of risk in setting pretrial release conditions and advocate for the presumptive use of non-financial release conditions to the greatest degree consistent with evidence-based assessment of flight risk and threat to public safety and to victims of crimes.”
“. . . increase successful pretrial release without imposing unnecessary financial conditions that many defendants are unable to meet.”
Resolution Endorsing the COSCA Policy Paper on Evidence-Based Pretrial Release
Who benefits from Evidence - Informed Pretrial Decision Making• Everyone
• Victims (identify those who pose a substantial risk)• Potential victims (reduced recidivism)• Public
• Fiscal benefit• Safety benefit
• Law enforcement / County jails / Pretrial agencies• Allocation of resources
• Lower risk defendants• Decreased collateral consequences• Potential for decreased recidivism
• Judges
