December / January 18

December/January 2018

A Review of Software Solutions

Vol. 15 No. 6

BAIL: StateBy-state Reform

IS YOUR COURT PREPARED FOR A DISASTER?

with alternative & diversion programs

Publisher & Executive Editor Thomas S. Kapinos Assistant Publisher Jennifer Kapinos

D E C E M B E R / J A N U A R Y 2 018 VOLU M E 15 N U M B E R 6 F EATU R E S

8 Preparing Your Court for Emergencies and Disasters

12 A Review of Software Solutions

Editor Donna Rogers Contributing Editors Michael Grohs, Bill Schiffner G.F. Guercio, Kelly Mason Art Director Jamie Stroud Marketing Representatives Bonnie Dodson (828) 479-7472 Art Sylvie (480) 816-3448 Peggy Virgadamo (718) 456-7329

20 Smooth Sailing: How Wayfinding Can Help

26 Bail Versus Pretrial Release: Progress by State

32 Trends in Digital Recording

DE PARTM E NTS

34 Ad Index

with alternative & diversion programs

is published bi-monthly by: Criminal Justice Media, Inc PO Box 213 Hermosa Beach, CA 90254 310.374.2700 Send address changes to: COURTS TODAY 69 Lyme Road Hanover, NH 03755 or fax (603) 643-6551 To receive a FREE subscription to COURTS TODAY submit, on court letterhead, your request with qualifying title; date, sign and mail to COURTS TODAY 69 Lyme Road Hanover, NH 03755 or you may fax your subscription request to (603) 643-6551 Subscriptions: Annual subscriptions for non-qualified personnel, United States only, is $60.00.

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BY MI C H A E L G R O H S , CO N T R I B U T I N G E D IT O R

CREATING A PLAN FOR YOUR COURT IN THE EVENT OF AN EMERGENCY.

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IF YOU GOOGLE IT— and this is true—the Centers for Disease Control has information on what to do in case of the zombie apocalypse. It began as a tongue in cheek method to teach disaster preparedness in an attention-getting, interesting way, complete with a public service poster and graphic novel available for download. It is actually a perfect metaphor. Similar to the McGuffin used in Hitchcock movies, the event could be an analogy for nearly any disaster.

It is difficult to plan for each individual disaster, but the problems are uniform among all of them: destruction and disruption. Every area is prone to some risk. Others are prone to many. David Letterman once asked Johnny Carson how the weather was in California. Carson said, “Great! The mudslides are putting out the forest fires.” The future is unpredictable, and as Louis Pasteur once famously observed, “Chance favors the prepared mind.”

Preparedness can save lives and maintain order in a chaotic environment, and a functional government is crucial in times of disaster. The 9/11 attacks and Hurricane Katrina caused judicial preparedness to receive a significant amount of attention. Lessons were learned about courts’ need to prepare for emergencies, and courts have identified essential functions, developed preparedness plans, and created continuity of operations plans.

When disaster hits, it can hit hard.

The wheels of justice slowed in Houston during Hurricane Harvey.

As reported in the Chicago Tribune, the torrential rains and devastating winds severely damaged courthouses in the nation’s fourth largest city, which has as many as 40,000 pending cases at any time. Proceedings had to be moved to other buildings including a re-furbished hardware store and a café. Hundreds of employees were relocated, judges

shared courtrooms, and criminal jury trials were delayed for two months.

Hurricane Maria made landfall in Puerto Rico on September 20. The Clemente Ruiz Nazario U.S. Courthouse in San Juan re-opened on October 17, nearly a month later.

William E. Raftery, Ph.D, senior KIS analyst notes that as of December 15, “Many of the courthouses remain inoperative,” yet some are set to come back online in the coming weeks.

Court Security Handbook Five years ago, in 2012, the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA) revised their publication Court Security Handbook: Ten Essential Elements for Court Security and Emergency Preparedness. Traditionally, there are three types of plans. An emergency preparedness plan covers what to do in the case of specific emergencies such as a fire. A continuity of operations plan (COOP) covers how to address a disruption of court operations and to restore essential functions of the court, and a disaster recovery plan focuses on how to restore the functions of the court, particularly records and information systems. Continuity of operations plans ensure that courts know what to do should they be faced with an emergency that threatens normal operations. Traditionally, a COOP is developed and implemented for situations in which the courthouse is inaccessible such as a result of a natural disaster or terrorist attack. A COOP establishes processes to deploy personnel, equipment, vital records, and supporting hardware and software to an alternate site in order to continue operations for up to 30 days. It also addresses the continuation of normal operations once the emergency has ended.

A COOP for courts, according to

CCJ/COSCA, should include specific objectives relating to the court’s mission and functions, and an overall approach for maintaining essential functions during an emergency.

Emergency roles and responsibilities should be delegated, succession roles planned, and staffing for essential court functions as well as resources for each addressed. Measures should be taken to protect all data and information systems needed to support the court’s essential functions.

Alternate facilities in which to operate that will be capable of immediately supporting the performance of essential functions under various threat conditions should be identified as well as preparations for the emergency relocation of contingency staffs to the alternate facilities, communications requirements for the alternate facility to assure the availability of critical communications systems need to be addressed.

There should also be a basis for training COOP participants, testing equipment, and conducting exercises to evaluate the plan to “include provisions for the resources of other agencies that may be required in the performance of the court’s essential functions and consideration of how the continued performance of the court’s essential functions will affect or, in turn, be affected by other state, county, and local offices.” As Justice Robert H. Edmunds Jr. wrote in Judges’ Journal, “A COOP is a living document that requires regular updating as circumstances change and court personnel turn over.”

A properly created plan, the handbook notes, is the key to mitigating damage and facilitating a return to normal operations. A disaster can result in significant damage and require a prolonged use of resources before normal operations can be resumed. (Again, three months after Maria, some courthouses in Puerto Rico are still not yet operational.) Data have become December/January 2018x

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the backbone of courts, and managing it has become a primary function. When a court’s data system has been disrupted or compromised, the court will have difficulty performing even its most basic and essential responsibilities. Because of this, courts must develop plans not only to prevent disruptions to data systems but also to recover such systems as soon as possible.

Pandemic preparations While a zombie apocalypse is improbable, a pandemic is not. In 2016, the Conference of Chief Justices and Conference of State Court Administrators Pandemic and Emergency Response Task Force published Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators. In 2014, the U.S. faced another potential

emergency: an Ebola scare. The courts became involved when one in Maine challenged the quarantine and monitoring of Kaci Hickox, a nurse who may have been exposed.

Courts across the nation paid attention to the case. Many courts questioned whether or not they were prepared to address the complex legal questions that might arise in a full-blown epidemic. Only 20 or so states had developed public health benchbooks, and many were dated.

In response, the CCJ had called for the creation of the Pandemic Task Force to help courts better prepare for the complicated legal issues that a public health crisis might present.

It was formed in December 2014.

The silver lining is that emergencies can be good teachers. In 2005, Louisiana was hit by two hurricanes: Katrina and Rita. This presented state governments with unprecedented challenges. (To add to it, Louisiana’s judicial branch is decentralized.

Immediately following the hurricanes, the Louisiana District Judges Association formed a Disaster Recovery Planning Committee, which developed a disaster recovery template and sent it to every chief judge in the state.) As a result, the lessons learned, according to a report released by the Supreme Court of Louisiana, included that in disasters such as hurricanes, people are highly mobile. People may leave or be evacuated, and it may be sudden or anticipated. “Contingency planning for such displacement and the impact it has on workflow is critical, and clear chains of authority, clear lines of communication, and the assignment of responsibility to both principal and backup staff are key.” The Supreme Court’s COOP addresses this, and they meet each season to discuss and plan for emergencies.

In the event of an incident, “Every effort must be made by the bench and the bar to provide critical court related services to the public.” In Louisiana, key staff are assigned to “assist in the preparation of court

orders regarding closure, to address rule issues that may be implicated by a disaster, to assist local courts in the event the ad hoc appointment of judges is necessary, and generally to provide support to local efforts to resume operations.” In 2011 the Supreme Court announced a rule that provides “for provision of temporary civil legal services following the determination of a major disaster.”

Other determinations the Supreme Court of Louisiana made was that disaster preparedness, regardless of the scale of the event, “implicates significant interbranch organization at the local, state and federal level,” as well as that special programs such as drug courts, and other programs may require special attention. (In Louisiana, the Supreme Court acts as fiscal agent for state and federal funds for the state’s drug and other programs.) “The treatment and related support needs of participants in these court based programs requires special advance planning to ensure that in the event of a disaster participants are located and supported and that program operations can be revived as quickly as possible.” If the impact on the program is severe, and participant displacement is significant, “Special efforts need to be made to ensure program viability, accountability and responsiveness.”

These efforts might involve outreach to criminal justice and judicial branch partners in neighboring states. Staff at the Supreme Court are assigned to oversee these programs and support them in the event of an emergency.

Dwight Eisenhower once said, “Plans are worthless, but planning is everything.” What might sound paradoxical at first touches the core of what defines an emergency. By definition, an emergency is unexpected, so it is not going to unfold according to plan. What does one do in the case of the zombie apocalypse? All we have to go by are movies. Do zombies shuffle, or do they sprint? No one knows, but chance favors a prepared mind. CT

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BY G. F. G U ERC I O, C O N T R I B U T I N G E D IT O R

Software Solutions:

A REVIEW

Court and supervision professional’s urgent SOS calls are answered with different type of “SoS”: Solutions of Software.

Tyler Technologies’ past Odyssey User Conference in Austin, Texas. Next year’s conference is March 27-29, 2018, Fort Worth; and Connect Conference, April 22-25 in Boston.

S

hrinking budgets, aging technology, and compounding processes and procedures cause many courts to struggle for better solutions. Selecting the wrong solution could significantly impact court productivity and effectiveness, says Ernie L. Sego, president/CEO of Justice Systems, Inc. At worst, the wrong solution could cost a court years of time and millions of dollars without a proper solution ever being implemented. “A proper selection process should include input from all levels of the court impacted by the new system. Courts should also

learn from other similar organizations that have successfully implemented new systems. While price is an important consideration, it should not be the decisive factor when selecting a new system. An RFP (request for proposal) can help narrow the pool of qualified providers, but detailed demonstrations of capability will help users determine which systems will meet their needs.

“Through our experience, we have found what does and what does not work when training and implementing a new case management system,” he furthers. “Our

Project Delivery Team members have expertise acquired from professional experiences as former court and attorney staff with technical expertise obtained through interaction with court personnel, attorney personnel, administrative staff, and technical programmer-analysts.”

Justice Systems’ training process consists of a combination of classroom training at a training facility, on-site training at the court, and remote training via the Internet.

Additionally, the company provides a service called First-Line Support, which permits end-users to directly contact the Justice Systems Help

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Desk via the toll-free phone number, fax, web, or e-mail for both functional and technical assistance with the application and its various components.

When choosing a system, it’s important to envision the court processes minus the obstructions that slow you down. If you’re planning an investment in court technology the most important thing you can do, says Sue Humphreys, director of Industry Relations for equivant, is to identify the bottlenecks in your current process and think about what that process looks like without them. “Don’t try to solve the problem, just figure out what those problems really are and articulate the process without them,” she says. “You’re looking for software that does that.”

Describing her comfort zone for a smooth technology transition, she continues: “I’m a fan of Steve Krug’s book “Don’t Make Me Think” which advocates for making software and web sites ‘self-evident’ or selfexplanatory. You shouldn’t have to wonder what the buttons do or what page you should go to next,” Humphreys emphasizes. “This is especially important for public-facing software, but I think it applies to all technology.”

To a large degree, she says, customers drive new functionality included in releases. “We host an online product enhancement forum where we collect their ideas and then work with them to refine those ideas through design and development. We also host annual regional training workshops that give our customers the chance to hone their skills or learn more about aspects of the software that they may not be fully utilizing.” Their cus-

tomers also run their own usergroups where they can give each other tips.

Equivant has also been working with a customer group to design a new Judicial Tools application for judges and magistrates that insulates them from the more administrative aspects of their CMS by serving up their calendars, case notes, important documents, and decision support tools. “The group is wrapping up their beta-testing now and you can expect to see it generally available by the first of the year,” she notes. Another “pluggable” component soon to release has the ability to automatically notify customers about upcoming hearings, payments that are due, or other obligations with the court. “We’re including phone and text notifications that will let the customer inquire by calling or texting the court as well as letting the court push these reminders out automatically,” she says. “We’re also integrating with several partner compaJusticeTech from ImageSoft integrates solutions.

nies to offer a more streamlined ability to conduct remote video conferencing and online dispute resolution; both of these will be available in early 2018.”

Training Partner Michael Kleiman, director of Marketing, Tyler Technologies Courts & Justice Division, relays that Tyler provides support services and resources, “including a real-time help desk and related services that solve Odyssey clients’ immediate needs.”

With Tyler University, clients can access job-related training 24/7 from any device with Internet access.

“Tyler U reduces the time, effort and cost associated with training clients’ workforce by delivering tailored curriculum from a comprehensive library of courses,” he says.

Tyler also hosts annual user conferences including the Odyssey User Conference and Connect Conference.

Kleiman says these educational events are the perfect venue to interact with Tyler staff and other clients while gaining knowledge, taking indepth training, making connections and building relationships. In 2018, the Odyssey User Conference is March 27-29 in Fort Worth, Texas, and the Connect Conference is April 22-25 in Boston.

Many courts struggle with the volume of cases being filed, Kleiman conveys, and are looking for solutions to unclog court backlogs. “To further advance court automation, new solutions for mediation and online dispute resolution will make justice available to a wider audience with lower cost.” Tyler’s Modria combines the social science of alternative dispute resolution practices with rules-based technology and case management.

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Stepped Transitioning Another industry insider, Dave Hawkins, chief executive officer, ImageSoft, Inc., says an important point to consider is flexibility and ease of configuration “so that courts can configure the applications for its jurisdiction and not require teams of people, and years to do it.” Also, important is interoperability to share data and documents with other internal and external systems. “Systems that are not flexible and easy to configure create a lot of upfront costs for courts to get started, take a lot of time that users don’t generally have to make the transition, and can be difficult and more expensive to adapt to changing/evolving business requirements.”

Hawkins says, “If the data is trapped in one system it creates a lot of work for folks to enter and maintain data twice, print documents and increases the risk of inconsistencies and integrity of the data.”

ImageSoft has expertise with helping courts transition their papercentric processes to a digital workflow, he notes. “This requires both an understanding of court processes and how each unique court’s requirements can be accomplished with highly configurable workflow technology.” This transition can be done in stages to accommodate a court’s budget and staff availability.

Each of the key stages—document intake, storage, and processing—can be transitioned from paper to electronic format independently.

“Courts need to focus on leveraging purpose-built applications that integrate well with other systems so they can use best of breed solutions across the board,” points out Hawkins. “Courts should be looking for secure government cloud storage to host applications and data so that the financial and human resources used to support onsite hardware and software can be refocused.”

Alternative funding options like a

Equivant’s Judicial Tools application works with your Case Management System to highlight the cases, calendars, documents, and notes that help judges and magistrates manage their caseload without having to filter through all data being collected.

subscription-based approach should also be considered to help reduce upfront risk and barriers to move to a new system.

Frequent Upgrades Another judicious procurement tip is raised by Kendall Smith, business development manager, Thomson Reuters C-Track. “By choosing an evergreen system that is configured to your specific needs,” she says, you will have a system that remains technically relevant now and into the future. “We recommend that courts ask vendors how often upgrades are made to the core product. If the answer is quarterly or several times a year, you are in a good situation.”

Smith explains that the implementation process will get a system and court up and running and once the system goes live, a “set-it and forget-it” idea can take form. “I would suggest that court users set a regular cadence after go-live to reexamine their automation tools. The systems have many task and tickler settings. When used correctly, they can offer incredible efficiency gains,

but sometimes if left unattended do not perform to the level that they could. A simple check-in every few months to modify the tools will ensure that your team and system are performing to its full potential.”

She espouses the idea that the most exciting part about an open system are the endless possibilities.

“As trends in legal technologies evolve—for example, the impact of artificial intelligence in processing court case information, or automated decision-making and case triage tools—an open-architecture case management system like C-Track can incorporate and integrate these new systems to further enhance your court operations without ‘starting over’ with a whole new underlying Case Management System (CMS) procurement. This also means that a court doesn’t have to figure it all out now, but rather can rest assured that their CMS will continue to evolve and scale around their needs,” she sums up.

Train Your Software Evolving new technologies are integral to Extract Systems, a compa-

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ny which offers automated indexing, extraction, and redaction solutions, notes Troy Burke, director of Government Solutions. “Potential solutions should utilize Artificial Intelligence and Machine Learning to train software to automatically recognize court’s specific document types and capture, or redact the relevant data; this will enable the system to continue to evolve as new documents types are received or court requirements change.”

He clarifies: Extract is not a CMS, but rather provides automation tools that easily integrate with Case and Document Management Systems to eliminate tedious time-consuming manual tasks; whether that is eliminating data entry or automatically redacting documents before making them available online.

Many CMS still rely heavily on human intervention when processing case files, he notes. “Courts should consider the amount of manual data entry and validation currently done by court staff, and look at implementing automation tools to automatically classify documents, identify specific information in those documents, conditionally route to certain individuals, and compare to your database to expedite the clerk review process and increase overall accuracy.”

Burke adds courts have traditionally focused on redaction, “but they are missing the powerful character recognition capabilities Extract’s platform can provide when it comes to reducing data entry and improving the document review process. Another feature not fully utilized,” he emphasizes, “is our Smart Alerts notification system which notifies users when a document requires attention and has the ability to email reports to management on a specific schedule.”

Similarly, notification and management reports are crucial when talking about supervision, according to Mac Bornhauser, court system

liaison, MobileServe. “Court administrators and probation officers have two major pain points when it comes to supervising community service sentences–verifying when service was actually completed and collecting the records and signatures from community service partners.”

Their smartphone app and cloudbased dashboard has the ability to track and verify data in real-time.

“MobileServe allows a probation officer or court administrator to see the progress of every individual, to communicate details on service events, and to be proactive in engaging those on probation armed with real-time data.

Individuals can download the app onto their phone or check-in and log hours on any computer or tablet, including court-approved partner sites.” Court officials may

choose to use any or all verification methods individually or in tandem including geotagging, onsite signature capture and supervisor email to corroborate service logs.

He relates that despite continued pressure to reduce incarceration and fines for nonviolent offenses, many smaller courts don’t have the resources to manage added community service oversight and larger court systems push the limits of their own bandwidth. “MobileServe streamlines the service administration process for larger court systems by aggregating data in real-time and gives the smaller courts the opportunity to offer more community service and alternative sentences versus jail time.”

With community service sentencing on the rise and budgets flat, probation officers and court admins have more cases to work with fewer

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Individuals use MobileServe’s Mobile App to check in/out of events or log hours; court officers use it to verify and review service logs.

resources, he says. “Our solution not only gives them the tools to efficiently manage all aspects of service oversight on our desktop dashboard or mobile app, it gives them an audit trail and the records they need to verify completion or delinquency.”

Verifying your deficiencies is the start point cited to solving many issues on all fronts, so before you tap out an SOS on your office window look to the many solutions of software—SoS. CT For more information: equivant, 1.800.406.4333, equivant.com, info@equivant.com or gary.egner@equivant.com

Tyler Technologies Courts & Justice Division, www.tylertech.com, cjsales@tylertech.com, 1.800.431.5776 ImageSoft, Inc., www.imagesfotinc.com, 1.888.315.3901 Extract Systems, 1.877-778-2543, www.extractsystems.com, sales@extractsystems.com Justice Systems, Inc., 1.505.883.3987, www.justicesystems.com, info@justicesystems.com Thomson Reuters, Kendall.smith@thomsonreuters.com, 1.651.687.1142 MobileServe, www.mobileserve.com, mac@mobileserve.com, 1.502.649.3625

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BY DONNA ROG ERS , E D IT O R

SMOOTH Changing courtrooms on the fly? Docket adjustments at the last minute?

Digital signage can keep up with on-the-spot alterations with a quick click.

Would you like your court to be nimble and up-to-date in a heartbeat?

Well then, here are several signage offerings, which provide a choice of docket posts, directional maps, alerting notifications, or info like news and weather. These can be obtained solo or integrated, on a big screen or a small personal kiosk, connected to CMS or jury management systems, or to social media and/or mobile devices.

Mvix’s mapping software—developed in the U.S. in its Virginia headquarters—integrates with a court’s docket database to display case information throughout the courthouse. A key feature, when staff makes changes to the CMS, the screens automatically update, notes Mike Kilian, senior director, Business Development at Mvix Digital Signage. Its solutions include docket display systems, digital directories and wayfinding displays with step-by-step directions, interactive boards and digital kiosks.

Kilian furthers that courts prioritize ease of use as one of their criteria in implementing a new wayfinding system. As such he says “When

Signage created by Mvix for Frederick County District Court (Md.) and Prince George’s County District Court (Md.). onboarding a new client, our project management and creative teams get all the creatives from the court—including court seal, name, colors—and set up the screens. The team will also create custom content, including wayfinding maps and directories, as per the court’s needs.

This way, court staff is able to continue with their assigned tasks with-

out interruption.” In fact, he notes that court staff aren’t even required to log into the wayfinding system— the content from the signage is displayed in real time to court staff as edits are made from within the court’s regular CMS program.

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FROM MAPPING SOFTWARE TO DISPLAYS, SIGNAGE THAT MAKES NAVIGATING YOUR COURT A BREEZE.

SAILING

Moreover, Infax creates the software that runs their digital signage solutions. The software integrates with various facility management systems, such as case and jury management systems, as well as platforms like social media, news outlets and emergency alert systems.

INFAX

Unlike their DocketCall signage which displays an overview of all dockets, Infax’s newest solution CaseQ, displays courtroom-specific case information for courtrooms that need to be finely managed.

Integrating with the court’s case management system to display the day’s proceedings on small monitors outside individual courtrooms, staff can quickly modify the case order and update a party’s status using CaseQ’s user interface, keeping waiting parties informed and alert them when it’s time to enter the courtroom.

Moreover, Infax creates the software that runs all their digital signage solutions. The software integrates with various facility management systems, such as case and jury management systems, as well as platforms like social media, news outlets and emergency alert systems.

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Infax’s DocketCall screen (with weather), the firm’s first solution for justice facilities, is “the one that continues to be our most popular,” says Kristen Zeck, marketing communications manager. The software solution displays case information on monitors in high-traffic areas of the courthouse to ease congestion and facilitate patron wayfinding.

“One of the most common features courts look for in a digital signage solution is its ability to quickly guide patrons to their destinations in the building. With this in mind, we designed DocketCall to allow patrons to find where they need to go in 60 seconds or less.”

“Infax’s multiple solutions allow for a much more efficient courthouse. Attending court is often an uncomfortable experience for patrons, but by providing one or more of our digital signage solutions, courts can provide clear information to patrons and therefore help them feel more comfortable navigating the building.

This allows for less interaction between visitors and staff, which in turn allows for court staff to focus on their daily tasks.”

—Kerrah Wood, Infax Account Executive

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BELOW: The Portage County Municipal Courthouse in Ohio integrated a wayfinding and informational display.

ADGATORS ABOVE: AdGators DocketVision solution allows for a complete integration between displaying the docket, public notices and wayfinding within a single solution. Findlay Municipal Court in Ohio is an example in which the court presented the docket and directional mapping from a single display.

INTERACTIVE TOUCHSCREEN SOLUTIONS Navigo touchscreen and non-touchscreen wayfinding systems are ADA compliant and Section 508 compliant allowing patrons to view and search maps and directions to various services. Simplified maps are displayed, touchable and zoomable, allowing users to quickly and easily find their way around multi-building courthouses. Navigo allows users to toggle between multiple languages and offers easy map delivery options—text, email, and QR code brings maps right to court patron’s cell phones.

Maps on the Navigo touchscreen wayfinding system from Interactive Touchscreen Solutions, Inc. are touchable and zoomable.

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BY DONNA ROG ERS , E D IT O R

Bail Versus Pretrial Release

An overview of the current status of bail reform by state.

On

any given day, this country has 451,000 people behind bars who are being detained pretrial.

In Following the Money of Mass Incarceration, the Prison Policy Initiative put a price tag on how much it costs local governments nationwide: $13.6 billion, reported Bernadette Rabuy, senior policy analyst with the nonprofit, in her February 7, 2017 blog post.

This pretrial population, which has recently grown to be the majority of people in jails, has not been convicted and is legally innocent, Rabuy furthers. Looking at it from a slightly different angle, she adds that in 2014, local jails held 646,000 offenders—only 195,000 were convicted of a crime (while 451,000 were not). The reason, she says is: “Some people were arrested a few hours or days ago and have not been brought before a judge, and others are too poor to afford money bail and must wait for trial.”

The injustice of being locked up for days, weeks or even years before

a trial is beginning to be recognized, perhaps because of advocates, lawsuits, or just plain awareness.

For example, a statement by the California Judicial Branch begins: “Significant attention is focused on pretrial detention throughout the country.

Courts, counties, and municipalities have been the subject of multiple lawsuits asserting constitutional violations.”

Speaking out on these practices, Chief Justice Tani CantilSakauye expressed concerns about individuals who are detained pretrial solely because they are too poor to afford bail in her 2016 State of the Judiciary address to the California Legislature. And members in both houses of the Legislature have introduced legislation aimed at pretrial reform.

A few months later, in October 2016, the Chief Justice announced the formation of a Working Group to Recommend Changes in Pretrial Detention. The purpose of Work

Group was to review current pretrial detention practices and provide recommendations for potential reforms. Comprised of 11 judges and one court executive, the Work Group commenced December 2016 and was requested to report back this past December. The group was asked to seek input from criminal justice stakeholders, advocacy organizations, and bail industry representatives.

At the same time, a pretrial release/money bail reform revolution has been sweeping through other state judiciaries. New Jersey is probably at the forefront in leading bail reform. Its Bail Reform and Speed Trial Act, which rung in the 2017 new year, was expected to largely eliminate bail for minor crimes and was expected to significantly reduce the state’s jail population.

A new risk assessment tool, which was created through the Laura and John Arnold Foundation,

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"evaluates a defendant's risk of failing to appear, committing another offense, and committing a violent offense," according to the Philadelphia Inquirer.

“The assessment considers age at the time of the alleged offense, whether the offense was violent, past convictions and failures to appear in court, and other pending charges. It doesn't consider race, ethnicity, or geography, among other factors,” according to a story on Jan. 3, 2017 on www.dailykos.com.

For those N.J. defendants who are held under the new system, the bill also will enact limits on length of incarceration. “Those defendants who are jailed will be released if new deadlines aren't met: Prosecutors have 90 days to indict a defendant. A trial must then be scheduled in 180 days, according to

Daily Kos. In the past, this was not the case.

“In a 2013 study of the New Jersey jail population in October 2012, inmates awaiting trial post-indictment had been held an average of 314 days, according to the state Attorney General's Office.”

Despite objections from the bail bond industry, the new law is expected to be a net positive for most defendants, Daily Kos continues. Not only will it reduce the population of pre-trial detainees, it will also reduce the disproportionate prosecutorial power and allows the judiciary, a theoretically more neutral body, to have both the initial and final say in whether or not a defendant should be held pre-trial.

“While the new law isn't perfect,” notes the web site, “leading bail reform advocates are cautiously

optimistic—while recognizing that even the new system will require monitoring to ensure it is accomplishing its stated goals.”

New Report Gauges Pretrial Practices Thus far, New Jersey has been earning good marks. On November 1, 2017, the Pretrial Justice Institute published the first-ever effort to gauge the quality of pretrial practice and outcomes across the United States. Its report, The State of Pretrial Justice in America, uses three simple indicators—the rate of pretrial detention; the use of evidencebased pretrial assessment; and continued reliance on money bail—to grade each state and the nation. The grades overall were abysmal.

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According to PJI: “Only one state earned an A (yes, it was New Jersey); Nine states (Arizona, Colorado, Connecticut, Hawaii, Kentucky, Nevada, Rhode Island, Utah, and Virginia) received Bs; 10 states received Cs (Illinois, Maryland, Michigan, Minnesota, New York, Ohio, Oregon, South Dakota, Washington, and Wisconsin); 13 states received Ds; and 17 states—more than onethird—failed.” They say the overall grade for the nation, a D, “is evidence that too many women and men are being needlessly incarcerated in local jails even though they have not been found guilty of the charges against them.”

It is important to note that these scores are based upon current practice and do not reflect reforms initiated but not yet fully implemented.

Several states have grades that do not reflect important initiatives that PJI expects, in time, will yield significant improvements. These include states such as Alaska and New Mexico, both of which are profiled as States To Watch, some of which can be found in the following text.

In six states besides New Jersey— Arizona, Connecticut, Hawaii, Kentucky, Rhode Island, and Utah— all residents live in a county that uses a validated, evidenced-based pretrial assessment to inform decisions about pretrial release and detention; all of these states received a B. In three other states—Colorado, Nevada, and Virginia—85%-89% of residents live in a county using such a tool. Several other states are exploring or are in the planning stage of statewide implementation of pretrial assessments.

3DaysCount Campaign State leaders are also encouraged to consider adding their state to PJI’s campaign, 3DaysCount, a nationwide

initiative to set a new national standard for pretrial justice by working at the state level to reduce unnecessary arrests; replace discriminatory money bail with practical, assessment-based decision-making; and restrict detention (after due process) to the small number of people who are not ordered released by the court. The name for the program comes from the premise that “Even three days in jail can be too much, leaving low-risk defendants less likely to appear in court and more likely to commit new crimes—because of the stress incarceration places on fundamentals like jobs, housing and family connections,” notes PJI. 3DaysCount will follow the example of places like Colorado, Kentucky, New Jersey, Washington, DC, and dozens of other locales where updated state laws encouraged local jurisdictions to reliably implement smarter pretrial justice policies and practices. In Connecticut, Governor Dannel Malloy’s office signed on to the 3DaysCount campaign in February 2017. Within just a few months, the Connecticut legislature passed, and the governor signed, a bill establishing a clear presumption for non-financial release in most misdemeanor cases. Washington State also committed to 3DaysCount in June 2017 through its Pretrial Reform Task Force. The 3DaysCount-related work in Washington builds upon local efforts in King, Spokane, and Yakima counties, which have implemented local pretrial assessment tool and developed a program that helps prevent unnecessary arrests.

Finally, in California the recommendations of the Pretrial Detention Reform Workgroup were published in October 2017 in Pretrial Detention Reform, Recommendations to the Chief Justice.

The Workgroup determined that California’s current pretrial release and detention system “unnecessarily compromises victim and public

safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.”

With Chief Justice CantilSakauye’s guiding principles as the framework, the Workgroup developed a set of 10 recommendations that they said should be implemented as a whole. These include implementing a robust risk-based trial assessment and supervision system; establishing pretrial services in every county; and the use of a validated risk-based assessment tool.

The report emphasizes that “As with any comprehensive reform, it will be successful only if all three branches of California’s government join together in its development, implementation, and maintenance.

A foundation built on legislation, clear and directive court rules, and adequate and sustained resources with new funding streams is essential to the reform envisioned in these recommendations.”

For the full report The State of Pretrial Justice in America 2017 by the Pretrial Justice Institute see https://university.pretrial.org/viewdocument/state-of-pretrial-justice-in-americ

PJI Model Program

Washington, D.C. In Washington, D.C., 92% of people who are arrested are released pretrial and no one is detained because of an inability to pay. These results are largely due to the District of Columbia Pretrial Services Agency (PSA), one of the pioneering institutions of its kind in the field. Begun as the D.C. Bail Project in 1963 with a grant from the Ford Foundation, this agency operates 24 hours a day, promoting court appearance and public safety through the use of public safety assessments and graduated supervision levels. Eighty-nine percent

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(89%) of arrested people released before trial were not arrested for new charges while their cases were being adjudicated; 98% were not rearrested on a crime of violence while in the community pending trial.

PJI Model Program

New Jersey In 2014, under the urging of Gov. Chris Christie, New Jersey passed legislation that dramatically changed pretrial justice in the state. First, it mandated the creation of pretrial services agencies statewide to conduct pretrial assessments and make release recommendations to the court. The new system requires courts to use money bail only as a last resort, when they can articulate why other release conditions are insufficient to assure court appearance and public safety. Second, voters approved a constitutional amendment allowing for pretrial detention of individuals the court chooses to not release before trial.

Before the amendment, almost everyone who was arrested in the state was afforded an opportunity for release.

The state spent two years following adoption of the new laws preparing for implementation, which occurred in January 2017. The new system has, so far, been “phenomenal,” says PJI. The number of people held in New Jersey jails awaiting trial dropped by 15% in the first six months. Courts had begun detaining fewer individuals prior to the new laws coming into effect and the number of unconvicted people held in jail dropped by more than a third (34.1%) between mid-2015 and mid-2017. At the same time, public safety was improved. Both violent crime and overall crime rates dropped statewide in the first nine months of 2017, compared to the same period in 2016.1 One hundred percent of New Jersey’s population

now resides in a county that employs validated evidence-based pretrial assessment, and secured money bail has been functionally eliminated. Since the law went into effect, fewer than 30 individuals have been required to pay money prior to release.

PJI State to Watch

New Mexico In 2016, voters in New Mexico overwhelmingly approved a constitutional amendment to prevent the pretrial detention of people based on an inability to pay, while also allowing preventive detention of people charged with certain serious crimes. The measure had bipartisan support, and backing from Chief Justice Charles Daniels. Before the measure took effect, New Mexico had one of the highest pretrial detention rates in the nation— 341 per 100,000 residents.

To guide criminal courts on this measure, the New Mexico Supreme Court issued new court rules, developed with the input of judges, prosecutors, defense attorneys, bail bondsmen, legislators, and detention officials, which took effect July 1 of 2017. A group of bail bond agents and state legislators have brought suit against the rules; in August, a federal judge denied a request to stop judges from using the new court rules.

PJI State to Watch

New York The momentum to change pretrial detention practices in New York could perhaps be best encapsulated in the recently announced long-term plan to close Riker’s Island. The infamous facility holds 80% of the city’s inmates, most of whom have a pretrial status. Former Chief Justice Jonathan Lippman chaired the commission that developed the plan, and it has the support of Gov. Andrew

Cuomo and New York City Mayor Bill de Blasio. Cuomo has also made changes to pretrial practices part of his Criminal Justice Reform Act, which would include the use of assessment tools and alternatives to detention. New York City is also home to several innovative pretrial programs, including community bail funds and holistic defender programs, and a Justice Reinvestment Initiative from the Bureau of Justice Assistance seeks to improve pretrial systems through data analyses.

PJI State to Watch

Texas Harris County (Houston) is at the center of one of the nation’s largest legal challenges to money bail. A federal judge has granted a preliminary injunction to plaintiffs, who represent people charged with misdemeanors locked up because they could not post cash bail, and has ordered that all people charged with misdemeanors be released within 24 hours on personal bond if they have not already bonded out.

Despite its reputation for “lock’em up” criminal justice, Texas is home to bi-partisan efforts to emphasize prudent and legallybacked bail practices. Groups on both sides of the political spectrum—such as the conservative Right on Crime initiative and liberal Texas Criminal Justice Coalition— have found common ground on issues such as bail reform as a means to reducing jail populations and spending public resources prudently. While a bipartisan bill supported by the Texas Judicial Council to reform bail practices ultimately failed to pass this session, Texas has enjoyed success from its other smart-on-crime measures. Texas has its lowest crime rate since 1968, saved $2 billion in new prison construction costs, and closed three prisons. CT

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BY MI C H A E L G R O H S , CO N T R I B U T I N G E D IT O R

TRENDS IN DIGITAL RECORDING What’s here and what’s to come?

SoniClear’s Court Recorder 9 software makes recording easy from a laptop.

E

veryone who has ever seen a TV show or movie set in a courtroom knows that the process includes a court reporter. They are as familiar to the scene as the judge, the bailiff, and the nervous defendant, but many lay people, if asked, might not know why or how important it is to have an accurate written transcript of the proceedings. The goal, says Fred Lederer, director of the Center for Legal and Court Technology (CLCT), is to have “a 100 percent accurate text manuscript.” The reason is usually that the court cares about the transcript for appellate reasons—though not everyone

appeals.

If a court uses only digital recording, it is inexpensive.

With a transcript, it is expensive either way.

There are official reporters who are hired by the court system. There are freelance reporters who are often hired for depositions. The problem, says Lederer, is that the system is running out of court reporters. The 2013-2014 Court Reporting Industry Outlook Report commissioned by the National Court Reporters Association found that as a result of increased legal activity, decreased

enrollment and graduation rates for court reporters, and a rapid retirement rate will create a shortfall projected to represent nearly 5,500 court reporting positions by 2018. It is a concern for the courts. In one situation, in July 2017, the Tennessee Supreme Court created a task force comprised of judges, clerks, and court reporters to study the shortage in criminal courts.

Court reporting is an important function that requires skilled people.

Back in the day, it began with shorthand. Shorthand became stenography. At one point people realized that they could tape the audio at trials and proceedings, but that ran into problems because it was not always clear who was talking (or yelling), or extraneous noise such as

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traffic was picked up. Soon there were voice writers, and later users could get computers to recognize a speaking voice and have real-time voice reporting. Analog gave way to digital, in which files can be sent across the Internet, and the system can also be checked remotely to see if it is operating correctly.

Alan Bartholomew, founder of SoniClear of Pasadena, Calif., notes that his organization turned to digital recording in the early 2000s.

Many courts have adopted digital recording, and in those situations, traditional court reporters have become digital court reporters. This is not to say it is a push of a button to record a conversation but rather capturing, transcribing, and authenticating proceedings. An issue that can be avoided is that a court reporter might type what he or she thinks was said, but digital recording can pick up every utterance. A digital reporter can articulate when someone is not speaking up, or there are people talking over each other. For reasons like this, depositions can be stressful. People are in a room face to face, and the environment is tense. It is a different process with a different decorum than a courtroom.

SoniClear focuses on providing software to contractors who install the technology into courts. A benefit to this, says Bartholomew, is that courts don’t need an internal expert.

A competent IT staff could install it.

Enrollment is down for traditional court reporter schools, and the skills required can take several years to learn the stenotype machine, issues, procedures, terms, and accuracy. It is intensive and does not have a high graduation rate.

With digital reporting, people with more of an administrative assistance background could learn to run the software. The real need for expertise comes at transcription time. One trend regarding digital

The overlay illustrates the discreet recording solution installed by JAVS in a Kentucky Courtroom.

court reporting, he notes, is the pool of potential users is deepening. One organization in Virginia has started a training course for veterans returning to civilian life. The course is multi-week rather than multiyear.

Iam Bennett, marketing director at Louisville, Kentucky-based Justice AV Solutions (JAVS) notes that the looming shortage, for them, is driving the trend to digital recording. “We’ve seen the report by the National Court Reporters Association. We’re trying to boost the reputation and overall usage of digital recording technology in order to aid courtrooms across the United States.” He furthers that digital recording would allow these proceedings to continue as normal and allow the court reporter to transcribe necessary proceedings after the fact.

Other benefits include access to justice, transparency of proceedings, and cost savings for taxpayers and parties directly involved in legal cases.

Some advantages JAVS sees in digital recording include the ability for playback, either during the recording or afterwards. Should the issue of, “I didn’t say that…” come up in the courtroom, a judge can immediately pull up the record and play it back. A court reporter may be present in the room and have recorded what they heard, but there is the possibility they heard incorrectly.

There is also the matter that things happen quickly in a court-

room. People talk over one another.

Arguments or outbursts occur, and it’s nearly impossible for a court reporter to capture everything that is happening in those events. Digital recording allows parties, such as the court reporter, to go back, review the incident as many times as needed in order to capture all of the spoken words. It will even allow the reporter to isolate certain microphones to better discern what was said.

There is the matter of cost. When a case is appealed, a defendant needs to have access to an official record of the court proceedings related to their trial. If the trial was lengthy, it can cost several thousand dollars to obtain a copy of a court reporter’s official written transcript.

This transcript may also take weeks or months to produce. During that time a defendant would likely be incarcerated while waiting to build a case for appeal. This creates a burden on taxpayers, the defendants, their families, and it slows the judicial process as a whole.

Digital recording offers the ability to export a digital media file, almost instantly, after proceedings have finished for the day. Attorneys and defendants can review the record and, if needed, request a transcript at that point.

There is also the matter of transparency. In today’s digital environment, people demand access. The media wants to cover court cases, December/January 2018x

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concerned parties want to be able to see what happened in a particular case, and they may not have the means or ability to get to a courthouse. Digital recording gives the courts a media file that they can readily distribute to any interested party. “There is a common misconception that digital recording is stored out on the cloud and is immediately viewable to anyone on the web. This is not the case. Courts are in control of their media files, and they are only released when a judge or other authorized person specifically exports them for such a purpose.”

Continues Bennett, “Let’s face it.

Visual media such as poster boards, whiteboards, charts, and other docu-

SoniClear’s Court Reporter 9 software can be installed by inhouse IT staff, says the maker.

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ments all need to be physically stored somewhere after the case is over.

With digital recording (and the proper components), courts can scan documents, store video from dash or body cams, save PowerPoint or video presentations, and more. This can all be part of the entire court record, accessible to anyone who needs to review it. This eases the requirements on physical space to store evidence and presentation pieces.”

There are potential challenges to consider. For one, says Bennett, “The process can be a complicated one.

You’ve got courtrooms across the nation that all have different setups, and every system works in a unique way. This was both an advantage and disadvantage of analog AV equipment. If you needed extra functionality, you would just slap a new component into the system and perform some ‘workaround’ to get everything to work together. Digital technology requires a bit more planning initially, but if done correctly can provide you a scalability of your system that analog could not.”

What people really want, says Bartholomew, is voice-to-text tech-

nology. Often the calls coming in are from people asking about being able to talk, pushing CTRL+P, and having a report print out. That technology, though, is not here yet. Companies like IBM and Amazon are investing billions in such technology as Watson and Alexa, and where it goes remains to be seen. The strides are impressive, though. In this quest, 5.1% is considered a bit of a magic number because that is generally what humans miss in a given conversation.

As Bartholomew notes, though, until there is a computer that can recognize every accent, phrase, technological and legal term, tone and metaphor, it will require a human to be involved. The industry may be experiencing a plateau, he adds, and leaps forward may not be enormous until voice-to-transcript evolves.

There is still another consideration regarding the transition to digital recording, says Lederer, and that is the nature of judges and lawyers who tend to like paper and reading. Many people remain uncomfortable without a printed hard copy. “What drives the whole thing is the perceived need for a written transcript.” CT

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