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Vol. 14 No. 1
February/March 2016
High-tech Courtrooms Risks & Rewards Of Pretrial Release
: m r o ef
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with alternative & diversion programs
Publisher & Executive Editor Thomas S. Kapinos Assistant Publisher Jennifer Kapinos
F E B R U A R Y / M A R C H 2 016
Editor Donna Rogers
VOLU M E 14 N U M B E R 1
Contributing Editors Michael Grohs, Bill Schiffner G.F. Guercio, Kelly Mason
F EATU R E S
Art Director Jamie Stroud
10 Equipping High-tech Courtrooms... Considerations
18 Workflow Software Solutions:
Document Management, E-filing & Beyond
Marketing Representatives Bonnie Dodson (828) 479-7472 Art Sylvie (480) 816-3448 Peggy Virgadamo (718) 456-7329
25 Sentencing Reform: How Legislation Is Changing Policy
31 Risks & Rewards
Of Pretrial Release
DE PARTM E NTS
4
Tech Talk
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. Single copy or back issues-$10.00 All Canada and Foreign subscriptions are $90.00 per year. Printed in the United States of America, Copyright Š 2016 Criminal Justice Media, Inc.
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PUBLISHERS PAGE
New Column Tech Talk To Launch Next Month echnology is a powerful tool that can allow courts to meet essential purposes and responsibilities, even while severe economic pressures reduce court staff, reduce hours of operation, and even close court locations. It is for this reason we have enlisted the service of veteran court technology consultant, Jeff Nadler, to share with us his 25 years of extensive expertise about current and future trends in court technology. Mr. Nadler started his career with the Arizona
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Supreme Court and soon realized there was a real need for various forms of technology to help courts save money, streamline operations and ensure the daily functions of the courts to have optimum productivity. This realization led to the creation of Court Technology Consultants in 2010, of which he is president. Over the years CTC has been of assistance to courts in facilitating their transition to a more productive operation with the introduction of technologies such as e-filing, case management systems and integration, digital recording, and CJIS/IJIS. This period also marked the expansion of calendaring, digital evidence presentation, multi-media, strategic planning, workflow management, video conferencing, and web-based applications, remote monitoring, centralizing recording, and automatic redundancy, as well as numerous advancements in court security. Another vital development over the last few years is Court Mandated Offender Education. It provides offenders the 24/7 ability to take court mandated classes such as DUI, traffic, anger management, parenting, and domestic violence to list just a few of the dozens of classes that can be offered by a court. These not only save the court money but can also add a revenue sharing program, diverse content management, full analytics, and the ability to cater to rural areas. Another huge development for courts, remote appearances by audio and/or video, make routine, nonevidentiary pre-trial appearances more cost effective, efficient and simple for judges, court staff, attorneys and other participants. This technology once again saves time and money, and provides efficiency for thousands of courts. This is just a brief introduction of the potential of Tech Talk coming in the next issue of Courts Today. We encourage your questions and feedback; feel free to communicate with us about topics of interest to your court. Tom Kapinos, Publisher tsk2@mac.com
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B Y M I C H A E L G R O H S , C O N T R I B U T I N G E D I TOR
Technology in the Courtroom The options seem limitless but there are factors to consider....
legal system, says Fred Lederer, director of the Center for Legal and Court Technology (CLCT), is in a period of drastic change. More and more, technology is having an impact on the way courts operate. As a result of budget cuts, updating, modernizing, and other factors, technology is being used to replace or enhance personnel and to streamline efficiency. Location has become less of an issue, and first appearances can now be conducted remotely, thus saving time and money. Witness testimony and evidence presentation can be conducted using audio visual technology in remote and varied locations. CLCT has even experimented with using a remote juror. Evidence can be viewed in 3D, and even potentially using hologram technology. The options seem limitless, but there are factors to consider
The
when using and implementing such technology in a courtroom. In the beginning, says Lederer, there were large screens for displaying evidence. Usually the judge will view evidence displays through a screen on the bench, in which case he or she might not be able to monitor the jury and determine the psychological effect the presentation has on jurors. The concerns that the evidence might be prejudicial could arise. For example, without technology, if a jury verbally heard that a victim suffered 40 stab wounds, they might grimace or nod understandingly but still remain neutral overall; however, if there was a large screen and an attorney showed the photos of the victim’s body, an otherwise neutral mind might be horrified and start thinking that the defendant is a monster. A potential similar situation was narrowly avoided in a tragic child molestation case in which the evidence would have been pre-
sented in such a way, relates Lederer. The situation was fortunately avoided when the defendant pled guilty. Showing such evidence in 3D is another concern. While the technology is truly impressive, it also might cause the jury to unfairly consider the sheer horror of the crime and arrive at a prejudicial outcome. CLCT showed the first 3D evidence in an experimental trial. The evidence presented was a brick and a baseball bat. The brick, says Lederer, was more imposing in D. The edges looked more jagged than they actually were, so the question arose: Did it look more dangerous than it was? Rule 403 states: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
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evidence.� All of these factors come into play when considering what technology to adopt. There is also the matter that traditionally, says Lederer, evidence was not made public and has never been shared with the audience. (He furthers that of the thousands of interviews of judges CLCT has conducted, so far only two have reported that they have had members of the audience stand up and inquire or demand elaboration about the evidence.) The issue of the large screen was brought to light when one morning a judge was reading an article in the paper about a case over which he was presiding. He noticed that the story was particularly accurate, more so than should be expected. That was when he realized that reporters could now see the evidence. One consideration for courts
A remote witness during an experimental (simulated) child slavery prosecution at the CLCT courtroom. The Honorable Barbara Rothstein presides.
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Personal devices are becoming more and more a staple in the courtroom. This has been referred to as BYOD, or bring your own device.
is whether or not they wish to allow this. Tablets and other devices are becoming more and more a staple in the courtroom. They offer the possibility of “a courtroom in a box.” Steve Bogart, IT Manager/RSM at WolfVision, notes that they even have an industry term for this— BYOD. In fact, courts are increasingly encouraging lawyers to present evidence electronically using their own device. While there have been large screens to present evidence, courts have increasingly moved to small, flat screen monitors (usually one for every two jurors). There are certainly benefits. Tablets are inexpensive and can be either handheld or mounted. There is also the matter, though, that there may be vision issues, and 8 1/2 x 11-inch text can be very dense. There is also the mat-
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ter that the images will be smaller. (Of course, in that case the tablet can usually be held up to the eyes and may or may not be able to be made larger by zooming in.) Obviously no one wants jurors surfing the web, and a consideration courts have to make is what material will be allowed and how it will be viewed. Currently the U.S. District Court in Philadelphia presents evi-
When CLCT was originally designed, there was a camera over the judge, but not directly on the witness stand. It was 19 degrees to the side, and the witnesses thought no one was looking at them. That part, says Lederer, has been cured, but it is something courts must keep in mind. A major study using remote bail hearings in Chicago found that people appearing
Tablets are being used by attorneys in the courtroom to display documents, evidence, even streaming video. dence using tablets and video streaming. In their case, the images are streamed to tablets that can do nothing else. (In Los Angeles, the evidence is pre-loaded into the tablet.) There are other considerations, says Lederer. Among them is that if the jury is looking at the screen, they are not looking at the witness, so the decision as to whether or not to mount the tablets so the jury will be facing the witness stand or have them handheld will need to be made. (This is what the Philadelphia Courts does.) The potential is clear, and, as Lederer says, CLCT “continues to experiment.” The placement of technology is in itself a major consideration. Ideally, for remote appearances and witness testimony, the subject should appear as normal as possible in regards to size and placement. (The preference is that the subject should appear the same size and in the same place as a present witness would.) The monitor should be facing the judge. If a judge thinks a defendant is looking past them or over their shoulder, it can have a discomforting and dissociative effect. Cameras, says Lederer, should be right above the person.
remotely were getting higher bails. CLCT “strongly suspects” that it was a result of camera placement.
Issues To Consider
When procuring technology, there are elements to consider and questions to ask. Lederer advises, “Be totally sure you know what you need rather than what you think you need.” Technology changes quickly, and “we are in a period of drastic change.” He points out that while having a highly-skilled technologist sounds like the natural step, it can be disastrous. The technologist, he furthers, will give the best solution, but they may not give the best court solution. There are legal compliance aspects to address. Each court has its own culture, and each court will need to consider what will satisfy their technology needs subject to law and culture. It will also need to be “future-proof.” Questions that courts should ask before procuring technology include whether or not they are ready to use wireless technology to convey the signal. Are there concerns about confidentiality? Can other people pick it up? Does it matter? How much bandwidth does
the court need? Are you looking for people to install the devices, or are you prepared to do it yourself, and, among the most important, if they are looking for advice, do the ones dispensing the advice have court experience? Some courts are wired well, some are not, and some may not be sure if they are or not. There are organizations out there to guide courts in procuring technology or even to rent it out on a one-time basis. One organization that can help with some of these technology concerns is King of Prussia, Pa.-based Aquipt Trial Services. Aquipt specializes in courtroom technology assistance and provides IT support, expertise and equipment rentals on a national level. “Technology,” notes Rose Rykowski, director of sales, “goes out of date quickly, and everyone requires different things.” Aquipt tailors their services based on needs of a case, what is allowed by court order, as well as infrastructure of a courtroom. Among the issues that courts need to consider—especially older courts—is circuits and power. If a courthouse has an antiquated power circuit, for example, equipment failure during proceedings is a probability. Aquipt circumvents this problem by offering to survey a courtroom before a trial begins so technology recommendations are based on what is best for the size of the room and what equipment complements available power. Sometimes courts need to upgrade their power circuits as one way to avoid disruption during trial. Aquipt does its due diligence for clients, notes Rykowski, by scoping out space, preparing for the unexpected and relying upon 25 years of experience in setting up courtrooms. For more information on Aquipt Trial Services, see www.aquipt.com, call 877.591.5141 or e-mail trialservices@aquipt.com.
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B Y B I L L S C H I F F N E R , C O N T R I B U T I N G E D I T OR
Workflow Software Solutions: Document Management, e-Filing and Beyond… JUST ABOUT EVERY COURT SYSTEM today utilizes some sort of document workflow process. Whether that process is limited to a single individual or multiple people, a series of steps is completed to formulate the workflow process. Document workflow can consist of an invoice, order processing, email, snail mail, or other document, and it occurs every single day in every single business. Once the realization occurs regarding how often document workflow occurs each day, systems administrators begin to consider ways to improve and streamline the document workflow process to maximize time and cost savings. Records and document management are at the heart of most courts’ business processes. These two elements are directly related; document management focus on how courts obtain/acquire documents while records management focuses on care and storage after acquisition. Scott Bade, president at ImageSoft, Inc. says, “Courts are struggling to compete for precious IT resources and are turning to the Cloud for faster deployments, lower costs and higher functionality. Courts, like commercial markets, are realizing that they cannot afford to be in the software development business. Twenty sixteen will be the year of the Cloud in courts with products like Office365 leading the way.” “Using technology effectively is key for many aspects of a successful document management workflow including speeding juror processing and management as well as facilitating a positive juror experience, for
example,” adds Tessa Prophet, marketing specialist at Jury Systems Inc.
More Integrated Solutions
Phil Hatton, vice president, Justice Solutions Manager at Xerox Government Systems, LLC, says integration of these systems is the key for a more streamlined workflow. “Our Xerox court case management solutions include an integrated content management component within our base offerings or our CMS solutions can be easily integrated with a court-selected third party content management system. With our Xerox
Into the Cloud AgileCourt solution, the Apache Jackrabbit repository is included and our Xerox Contexte solution comes complete with built-in database content management functionality,” he reports.
Going Mobile
Gary Dower, president at Judicial Systems Inc., points out that courts have long been able to capture digital images of documents by scanning paper documents and extracting specific data elements in the process. He says that Judicial Systems, Inc. has provided document management with Advanced Data Extraction to court jurisdictions nationally as a component of its Jury Management System for more than 20 years. “Today’s mobile devices are taking the inputting of information to a new level by repurposing their builtin cameras for use as content-entry tool,” Dower explains. “Image capture from any device and from anywhere will grow to become essential. In the future, scanning and inputting documents while sitting by a traditional scanner will not cut it by itself. Image capture will now need to include the use of mobile devices such as smartphones and tablets with built-in cameras. We already see a huge application for this with mobile banking and check processing.” “Judicial Systems’ Document Management System coupled with
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the functionality of mJuror, the texting component of Judicial Systems’ JMS, now adds tremendous value to the Document Management process,” he adds. “The public is trending towards mobile first services, utilizing desktop and web services, secondly. Judicial Systems integration between its Document Management System and its mJuror Texting System will insure that jurisdictions are ready to accept the eventual mobile first business strategy regarding Document Imaging and Management while providing citizens a quality mobile experience,” Dower concludes.
E-Filing Capabilities Continue to Grow
E-Filing software is another area that is on the rise. The solution provides a secure, easy-to-use electronic filing system that streamlines and manages the two-way flow of information among attorneys, clerks, court personnel, and judges. Sue Humphreys, CourtView’s director, Industry Solutions, notes, “As e-filing solutions gain steam, we’re seeing a real shift where clerks are more involved in facilitating and quality-checks rather than headsdown data entry. That’s a great thing for caseflow overall. And with e-filing standards in place, we’ll soon start seeing even greater mobility—filings, alerts, updates— all on your smart device from wherever you happen to be.” “E-filing creates a tipping point to creating an electronic court, “ agrees Michael Kleiman, director of marketing for Tyler’s Courts & Justice Division. “Once filings come into the system as electronic documents it becomes much easier to create electronic case files and automated processes. Integration between eFiling, and case and document management allow courts to save money, free up space, and be more responsive to constituents,” he adds.
Document Classification
“Document classification is at the heart of any system that captures and stores documents. E-filing attempts to place the responsibility of coding on the submitter, however in the majority of cases, court clerk staff still inspect documents and correct docket codes to reflect what local understanding of the document is,” says Henry Sal, president at Computing System Innovations. “We've taken some of our technology and it has allowed us to redact privacy information and create iclassify. IClassify for Courts upgrades court docketing workflows by replacing manual efforts with machine learning technology that includes both linguistics and semantics,” he adds. Here’s a look at some of the latest document management and e-Filing software solutions for the courts:
Affidavit, etc., with their smartphone and text the picture to mJuror, which, in conjunction with the Document Imaging System, verify that the form is complete and acceptable. Once the document is accepted, the potential juror will be notified via text. www.judicialsystems.com, 1.800.205.4068
PRETRIAL MANAGEMENT
With strict guidelines in place for processing and preparing defendants for trial, Tribridge Pretrial360 provides the technology necessary for probation, parole and court users to easily and securely enter and track data. It’s also optimized for information sharing and improving accountability to enhance public safety. Built on Microsoft Dynamics CRM, these solutions allow for more informed decision-making at each
MOBILE MANAGEMENT SOLUTIONS
Judicial Systems’ Document Management System coupled with the functionality of mJuror, the texting component of Judicial Systems’ JMS, now is reported to add tremendous value to the Document Management Process. Document images and content may now be entered into the document workflow
phase in the pretrial process, from first contact with law enforcement through adjudication. Three distinct modules focus on different areas of Pretrial Management: Defendant Management, Supervision Case Management, and Risk Assessments to help jurisdictions move from resource-based to risk-based bail decision-making process. www.tribridge.com, 1. 877.744.1360
DIGITAL SOLUTIONS
ImageSoft delivers a unique integrated digital solution for both courts and prosecutors that runs in the Cloud. The ImageSoft JusticeTech
within the JMS by the use of smartphones/tablets rather than by document scanners alone. Potential jurors may take picture of a Qualification Questionnaire, Medical
solution provides Dynamic Case Management (CMS), Enterprise Content Management (ECM), and
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OPTICAL CHARACTER RECOGNITION
the TrueFiling e-filing platform in a single hosted platform at an affordable subscription price. The solution supports all major case types and for criminal cases it offers complete digital integration of law enforcement, the prosecutor, and the court. www.imagesoftinc.com, 1.888.315.3901
Odyssey provides tight integration between e-filing and case management, including document management. This generates efficiencies by creating electronic queues for accepting and routing filings.
VIRTUAL COURT RECORDS
CourtView’s JusticeFiling System is a launchpad for virtual court records. Whatever the source— attorneys, pro se, other agencies, or a judge—JusticeFiling lets you receive, review, route, accept, associate, and store documents efficiently and according to your rules and flow. The filer portal provides quick access to personal queues and status updates, with automatic notifications as filings progress. JusticeFiling easily integrates with CourtView’s
ShowCase iDMS or third-party document systems. Whether they are incoming or outgoing, documents are always available online to those with access permission. DMS security controls who can markup/annotate or edit documents and which document versions or “layers” are viewable by whom. www.courtview.com, 1.800.406.4333
Optical Character Recognition (OCR) capabilities enable users to search electronically filed documents for words and phrases. Odyssey File & Serve is the solution of choice for 11 statewide e-filing implementations, and Odyssey Case Manager is being used in more than 600 counties. www.tylertech.com, 1.800.431.5776
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WEB PORTAL FOR E-FILING
FullCourt e-filing provides a web portal for filing documents with the court electronically, creating cases from the filings, and providing notices to filers and parties to the case. Payment of filing fees is fully
integrated through its ePayment solution, CitePayUSA and provides
for seamless recording of financial transactions with the court case management system, FullCourt Enterprise. Once filings are submitted, clerks can review and process all filings within FullCourt Enterprise. www.justicesystems.com, 505.883.3987
store documents generated from within either CMS, store scanned documents or store electronically filed documents within the Apache Jackrabbit repository using our built-in database content management functionality. http://xerox.com/justice, 1.877.414.2676
CONTENT MANAGEMENT FUNCTIONALITY
MANAGEMENT SOLUTIONS
The Xerox AgileCourt solution’s Apache Jackrabbit repository is included in the Xerox Contexte solution. It comes complete with builtin database content management functionality. Both solutions can effectively manage all types of required content (audio files, video clips, documents, fingerprint, photographs, etc.). If desired, the court can automatically
Thomson Reuters is committed to provide customers with unrivaled
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solutions that integrate content, expertise and technologies, the firm says. C-Track CMS delivers just that, offering courts customizable management solutions configured to how a court functions. Their suite of programs features the next generation of document management and e-filing solutions. www.thomsonreuters.com, 1.877.923.7800
WEB-BASED MANAGEMENT SOLUTION
ECourt provides a document management system as well as scanning, indexing and storage of paper-based and electronic documents. All documents, regardless of file formats (scanned images and electronic files such as PDF, Word, Excel, PowerPoint, Visio, text, audio, video), are easily stored, managed,
DOCUMENT MANAGEMENT SYSTEM
and retrieved from within eCourt for a single, centrally managed repository that has the necessary security and automation features to support the business. When a document is generated by eCourt, it is automatically associated to the case and saved to the repository. Additionally, when the user has to provide edits prior to saving the document and sending it, they can upload it to eCourt using the Microsoft Word ribbon tool bar and all revisions are saved. www.journaltechnologies.com, 1.877.587.8927
The Tybera CEDAR Document Management System (DMS) is designed specifically for courts. Many courts are moving away from full-featured DMS systems because of the high cost. The cost to license and maintain most DMS systems is
based on the number of users or interactive connections. When an efiling system is connected to a DMS, each account actively using the system requires one of the interactive
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connections. The more attorneys, Pro Se filers, and court employees using the system, the more connections to the DMS are mandatory. www.tybera.com, 801.226.2746
DOCUMENT CLASSIFICATION
IClassify for Courts improves court docketing workflows by replacing manual efforts with machine learning technology which includes both linguistics and semantics. It is the examination of language form, language meaning, and language in context. IClassify is actually able to resolve the ambiguity of expressions and the relationship of words in a body of text. This greatly improves the precision of document classification and at the same time allows distinguishing between important and irrele-
vant features in text. www.csisoft.com, 407.598.1825
JURY SOLUTIONS
With its suite of JURY+ Solutions, the entire jury process is easier for both jury staff as well as prospective jurors. Jurors may use JURY+ Web Solution to go online to qualify/disqualify themselves, request a postponement, or update information. Once submitted, it is archived in the core JMS, JURY+ Web Generation. If jurors prefer to mail in their paper-
work, JURY+ Imaging Solution allows specific data fields to be extracted from the form and updated into the database based on the court’s rules. Information is indexed with the juror’s record and retained in our searchable document archive. www.jurysystems.com, 1.800.222.6974
ID SHIELD
Extract Systems developed the ID Shield to meet the specific demands of government and public organizations to automatically capture and redact information from their recorded documents. ID Shield removes sensitive data from electronic or paper-based content permanently and securely. The system’s technology was designed to seamlessly integrate with all case management systems and other workflow solutions. www.extractsystems.com, 608.821.6520
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BY DONNA ROGERS, EDITOR
Sentencing Trends To ease overcrowding and lower exorbitant incarceration costs, legislators have been easing their sentencing policies.
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he U.S. has more people incarcerated than any other nation with 2.2 million people in prison or jail and 4.7 million under community supervision on probation or parole. Criminal sentencing trends over the last 30 years have resulted in a 500% increase in our nation's prison population. Much of this increase is due to “get tough on crime” laws that were enacted throughout the 1980s and 1990s. In 2014 both state and federal legislative bodies began examining who goes to prison and for how long, preserving costly prison space for the most dangerous offenders. Much of the focus has been on offenders that went to prison during the “war on drugs,” often being incarcerated for years for low-level offenses. Sentencing policies of this era resulted in dramatic growth in
Kentucky, one of many examples, has reformed its juvenile justice system by reducing the use of out-ofhome confinement for lowrisk youth, particularly those adjudicated for status offenses, and expanding opportunities for treatment.
incarceration for drug offenses. Since the official start of the socalled drug war in the 1980s, the number of Americans incarcerated for drug offenses climbed from 41,000 in 1980 to nearly a half million in 2014, according to the Sentencing Project. Furthermore, sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. In contrast, by 2004, time served for a federal drug offense averaged 62 months in prison. At the federal level, people incarcerated on a drug conviction make up half the prison population. At the state level, the number of people in prison for drug offenses has increased ten-fold since 1980. Most of these people are not high-level
actors in the drug trade, and most have no prior criminal record for a violent offense, according to the Sentencing Project. Policy has been shifting and recent years have seen steady changes to the sentencing policy for drug crimes. The changes include diverting some offenders to community supervision and treatment, adjusting drug penalty thresholds and relaxing mandatory minimum sentences. In one big change, effective last November, 6,000 federal prisoners were released early due to drug guideline reductions put into effect by the United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines. The guidelines not only made changes to offenders being sentenced under new, reduced guidelines but the change February/March 2016x
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The U.S. has more people incarcerated than any other nation with 2.2 million people in prison or jail.
affected prisoners retroactively, and current prisoners are able to petition courts for sentence reductions. The Honorable Patti B. Saris, chair of the U.S. Sentencing Commission said the new guidelines represented “a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.” She furthered that: “Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.” Yet she commented that more needs to be done. “Still, only Congress can act to fully solve the crisis in federal prison budgets and
populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.” According to early release petitions obtained by The Associated Press, some of the offenders were low-level offenses, such as the case of Lincoln Steve White, 43, who was caught buying two ounces of cocaine for $1,400 in Florida in 2008 and has served more than five years of a seven-year sentence.
Dramatic Steps by States Beyond the federal drug guidelines, states have made dramatic steps to change sentencing. During 2014, legislators in at least 30 states and the District of Columbia authorized a range of law changes and policies that may address the nation’s
scale of incarceration, according to a report called “The State of Sentencing, 2014, Developments in Policy and Practice,” conducted by the Sentencing Project. The report outlines specific actions taken by states, including reclassifying certain low-level offenses, adopting changes to probation and parole policies that expand sentencing alternatives, adopting reforms to juvenile justice and scaling back collateral consequences associated with a criminal conviction, including employment bans. Here are some highlights of the changes made by states.
State Sentencing Shifts According to the Sentencing Project, California voters authorized a substantial law change under
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Proposition 47, a measure that reclassified six low-level property and drug offenses from felonies to misdemeanors and eliminated prison as a sentencing option. Four states—Idaho, Mississippi, Nebraska, and Vermont—authorized reforms under the Justice Reinvestment Initiative. Also in California, lawmakers equalized quantity triggers for certain crack and powder cocaine offenses, increasing the number of states that have authorized such law changes; Missouri, South Carolina, and Ohio enacted similar policies in recent years. Also in California, lawmakers authorized AB 1468, a comprehensive measure that included several provisions relating to persons sentenced to county jails for non-serious, non-violent, non-sexual felony convictions under the state’s Realignment policy. A key provision requires the presumption of split sentences for persons sentenced to a county jail term under Realignment offenses and requires probationary supervision. The low-level property offenses reclassified by California’s Proposition 47 include shoplifting,
theft, and check fraud under $950, as well as personal use of most illegal drugs. State savings resulting from the measure are estimated to be at least $150 million a year and will be used to support school truancy and dropout prevention, victim services, mental health and drug abuse treatment, and other programs designed to expand alternatives to incarceration. Approximately 10,000 incarcerated persons will be eligible for re-sentencing under the new law. In Alabama a task force was established to study and identify causes and potential legislative solutions to address chronic overcrowding in the state’s prison system. In Delaware, HB 312 authorized judges to impose sentences concurrently, rather than limiting sentencing to consecutive sentence imposition. In Florida, HB 89 enables judges to depart from mandatory minimum sentences for aggravated assault. Prior to the law change, aggravated assault was subject to a three-year mandatory minimum sentence if a firearm was displayed during an offense or a 20-year mandatory minimum sentence if a firearm was discharged.
In addition, the Sunshine State’s SB 360 raised the weight threshold for trafficking in prescription painkillers containing oxycodone and hydrocodone, created new weight categories for several trafficking offenses and reduced statutory penalties for specified offenses. Specifically, the measure eliminated the mandatory minimum for illegal possession or distribution of hydrocodone painkillers under 14 grams, and illegal possession or distribution of oxycodone painkillers under 7 grams. In Missouri, lawmakers revised the state’s criminal code. The focal point of the revision was the implementation of new felony and misdemeanor classes. Under the new, lowest level misdemeanor class, jail time is no longer a sentencing option. Previously, the code authorized sentences of 15 days to a year for misdemeanor convictions. A salient provision in the new law eliminates jail time as a sentencing option for persons convicted of a first-time offense of possessing less than 10 grams of marijuana. Possessing up to 35 grams of the drug is currently punishable by up to a year in prison.
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New Hampshire legislation authorized earned time for certain incarcerated persons who participate in selfimprovement programs including education and vocational programs and mental health treatment. Judges will determine at sentencing if persons sentenced to prison are eligible for this earned time provision. The law also authorizes earned time reductions for eligible inmates who were incarcerated prior to the effective date; the measure outlines a process for inmates to petition the sentencing court. Four states, Idaho, Mississippi, Nebraska and Vermont, authorized legislation to analyze criminal justice data to identify key factors contributing to state prison population growth, and developed policy proposals to reduce costs and improve public safety. Alaska, the District of Columbia, Maryland, Minnesota, New York, and Oregon addressed marijuana offenses in various ways.
Probation & Parole During 2014, three states—Mississippi, New York, and Oklahoma—adopted changes to probation and parole policies to broaden criminal justice options. In Mississippi Provisions under HB 585, the state’s justice
The number of Americans incarcerated for drug offenses climbed from 41,000 in 1980 to nearly a half million in 2014.
reinvestment initiative act, expanded judicial discretion to impose sentences such as court-ordered treatment for individuals convicted of certain drug offenses. The measure also authorizes circuit courts to target individualized treatment for veterans with certain convictions. In New York judges can now establish probation terms for felony offenses at three, four or five years and for misdemeanors at two or three years, based on the nature of the crime, the individual’s criminal history, and risk of re-offending. Previously, almost all felony cases resulted in a five-year probation term. Oklahoma lawmakers authorized SB 1720, a measure that requires probation agencies to provide probationers with intake and orientation, substance abuse assessment, and a treatment plan. The measure also requires the agency to conduct a criminal risk needs assessment and reasserts statutory authority to impose certain conditions of supervision.
Collateral Consequences The consequences of a criminal conviction often go well beyond the period of incarceration or probation. Simply having a criminal record can bar individuals February/March 2016 28
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from securing employment, receiving public benefits, or voting. In 2014, at least 14 states and the District of Columbia passed legislation to minimize these consequences in law changes that addressed employment, federal felony drug bans on public assistance, and initiatives to ease the reentry process for those struggling to reintegrate into their communities, noted the Sentencing Project. For example, of note in California’s Proposition 47 is a provision that permits people who have completed their felony sentences for specified offenses to petition the court to reclassify those convictions to a misdemeanor. This law change may eliminate barriers o employment, housing, and jury service. Delaware, Illinois, Nebraska, New Jersey and the District of Columbia
Drug sentencing reforms include diverting some offenders to community supervision and treatment, adjusting drug penalty thresholds and relaxing mandatory minimum sentences.
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HigHligHTS in STaTe PoliCy CHangeS Sentencing: At least 16 states and the District of Columbia authorized legislation to address sentencing policy, including statutory penalties that limit lengths of confinement. Notably, voters in California approved reclassifying certain low-level offenses from felonies to misdemeanors, eliminating prison as a sentencing option. Lawmakers in Mississippi scaled back the state’s truth-insentencing provision from 85% to 50% for violent offenses. Probation and parole: Three states—Mississippi, New York, and Oklahoma—adopted changes to probation and parole policies that expand sentencing alternatives. Collateral consequences: At least 14 states and the District of Columbia enacted legislation to scale back collateral consequences associated with a criminal conviction, including employment bans and federal felony drug bans on public assistance. Juvenile justice: At least 15 states adopted reforms, including eliminating juvenile life without parole as a sentencing option in West Virginia and Hawaii. Kentucky and Hawaii also enacted comprehensive juvenile justice reform measures to reduce the use of outof-home placement for juveniles and prioritize therapeutic interventions as a public safety strategy. Source: “The State of Sentencing, 2014, Developments in Policy and Practice,” by The Sentencing Project
authorized “ban the box” policies to reduce barriers to employment. This discourages employers from requiring probationers to check a box disclosing their past conviction. In Delaware, the new law prohibits public employers from inquiring into the criminal background of job candidates until after their first interview. Employers may then disqualify applicants only for business reasons and only after taking into consideration the nature of the offense and the amount of time passed since the offense.
Juvenile Justice With growing awareness around how justice system involvement impacts youth, states are continuing to rethink how they hold youth accountable. Some have overhauled their juvenile justice system, placing new emphasis on preventive services and community-based alternatives to detention. Others have made incremental changes to their policies on juvenile dispositions and the collateral consequences of a juvenile record. At the close of 2014, youth faced improved outcomes in at least 15 states. New legislation in Kansas allows state courts to focus on treatment rather than punishment for low-risk youth in need of care. The law expands prosecutorial discretion to depart from established adjudication and placement processes to refer youth to child welfare services. Kentucky’s SB 200 will transform the state’s juvenile justice system by reducing the use of out-of-home confinement for low-risk youth, particularly those adjudicated for status offenses, and expanding opportunities for treatment to reduce recidivism. These youth will be diverted into community-based programs and requires evidence-based assessments to guide individual interventions and other provisions. The U.S. Supreme Court’s decision in Miller v. Alabama determined that
mandatory life without parole sentences for juvenile defendants were unconstitutional. During 2014, seven states passed legislation to come into compliance with the decision.
Policy Recommendations The report by the Sentencing Project acknowledges lawmakers have enacted a number of legislation changes to improve criminal justice policy during 2014. It states: “While the pace has accelerated in recent years, most of these measures will have only a modest impact on the scale of incarceration. It will take more far-reaching measures to markedly reduce the nation’s rate of incarceration, which is far above that in other western nations.” Some of the ways that policy and practice revisions could be broadened in order to decrease prison populations are by changing statuary penalties for certain offenses and by modifying truth-in-sentencing requirements for persons with violent offenses. Lawmakers could address sentencing policies known to result in racial disparities, such as equalizing quantity triggers for intent-to-sell powder and crack cocaine offenses. Emulating comprehensive juvenile justice reforms enacted by Hawaii and Kentucky that included reducing out-of-home placements and prioritizing therapeutic interventions and evidence-based treatment plans is a recommendation that would reduce the number of youth in secure detention. Lastly, addressing collateral consequences that the stigma of a prior record has on employment or housing can go a long way in establishing an ex-offender as a productive member of society. To read the full report “The State of Sentencing 2014” see http://sentencingproject.org/doc/publications/sen_State_ of_Sentencing_2014.pdf
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BY DONNA ROGERS, EDITOR
The Risks & Rewards of Pretrial Release Validated assessments and EM tools open new doors.
With
the high cost of incarceration and many lives wasted by incarceration, risk assessment tools, community supervision and technology that can support pretrial release into the community seems not only to be substantially cutting costs, but helping offenders too, experts say. By employing pretrial release, say community corrections supervisors, pregnant woman and those with chronic illnesses can then continue to go to their regular doctors, saving Medicaid/Medicare costs for the jurisdiction. Offenders with jobs can continue to go to them if they are on a monitoring program. Young
people can finish school. And those needing treatment can get it in a timely fashion. There is a paradigm shift in the way offenders are viewed, especially around pretrial management, states John Schloemann, national sales leader with Tribridge, a technology services firm. He says that as a whole, we are “moving from resource-based to risk-based decision-making,” and he believes it ultimately makes sense because many in jail have not been found guilty. “More than 60% of those in jail are awaiting trial,” which not only “takes up valuable space but can cost $60 to $200 a day to house them.” It appears the trend is that courts and law enforcement “are pivoting
With electronic monitoring, those with medical issues can stay on their own insurance, saving the county tremendous costs.
more aggressively to an evidencebased model,” he furthers. “We are assessing the threat to individual and to the public more so now than ever before.” Based on recent legislative sessions, progressive states are moving to a risk-based rather than a bailbased release program, concurs Angel Ilarraza, Ph.D, a criminologist, public policy planner and currently director of consulting and business development with Northpointe, Inc., the developer of nationally-recognized classification instruments. Other states, however, despite legislative mandates, are releasing to community corrections, but are doing so “begrudgingly.” He notes that he is not advocating February/March 2016x
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“letting everyone out” but is suggesting we make smarter decisions about whom gets incarcerated based on metrics about who is a threat. Dr. Ilarraza points to a study of pretrial offenders tracked by the National Association of Bail Bondsmen that compared FTA rates in publicly funded bail programs. The bondsmen’s perception initially was they did a better job of getting folks to show up to court dates, he details. But that wasn’t the case. “Now actuarial risk tools really help us understand the failure to appear rate.” Use of money bail “without addressing the risk, especially for the risk for violence, doesn’t make sense,” he believes. “It seems to make the best sense to move from resource- to risk-based assessment— and to consider the likelihood of reoffending and violent reoffending.” There has been a shift towards local dispositions of criminal cases as part of criminal justice reform. This has often been motivated less by effectiveness and more by fiscal concerns, says Helen Harberts, a longtime criminal justice professional, now retired, who served many years as a deputy district attorney, working with drug courts, as well as a chief probation officer and as the interim director of a community supervision and corrections program. “However, she continues, “when appropriate risk AND need assessments are done correctly, they provide a good guide for what can be expected from a person who is released into the community.” She cautions that addressing needs in conjunction with risk is crucial. “In other jurisdictions, the trend has been to release people, but the amount of local resources is insufficient to meet the assessed needs, or the assessments are not followed. In those areas, drug use and crime is going up. Deaths and overdoses are increasing. Neglect cases are increasing.
“It should be obvious to all that using an assessment to determine the level of intervention required to address criminality, and then NOT following the assessment with adequate services in sufficient dosage is a recipe for trouble. It breaches the public trust,” she says. She says that unfortunately “risk assessment tools are often NOT used at all available points of contact
Figure 1. This risk score matrix depicts the Northpointe COMPAS supervision recommendation based on the offender’s general risk of recidivism and their violence risk scale scores. The screener may override the recommendation due to aggravating or mitigating circumstances.
due to funding and access restrictions. Clearly, the entire system would be better off with assessment-driven decision-making that occurs as quickly as possible upon the initiation of criminal proceedings, and is repeated throughout the defendant’s stay in the criminal justice system.” Harberts furthers that “…Timely treatment interventions which are driven by good assessments improve the prognosis for success in criminal offenders and may favorably impact their ultimate case resolution.” She cautions that the majority of our high-risk offenders who present the poorest prognosis of successfully completing probation
without violations have criminal thinking errors. Thus, along with substance abuse treatment in highrisk offenders, it is vital to address criminal thinking with a tool such as MRT (an evidence based practice instrument developed by Correctional Counselling Inc.). “Failure to do so is like trying to run a four wheel car on three tires. You basically make a clean and sober criminal.” The Northpointe Suite is an automated decision-support software package of scientifically validated risk/needs assessment and offender case management tools. It was developed to be a repository of information to follow an individual’s trajectory through the criminal justice system, explains Ilarraza. It offers functionality through various agencies and uses the nationally recognized Decision Tree Objective Jail Inmate Classification System. Using a cross tabulation system (see Figure 1) it shows how much risk an offender might present, if they are eligible for release and what level of supervision they would require. In a pretrial setting, agencies can determine based on the risk factor “what are we willing to tolerate within our community and if offenders are eligible or not,” Ilarraza notes. In addition to the risk, it also can provide an assessment of criminogenic need that can help a probation officer understand what type of intervention should be applied, he furthers. “It is not a cookie cutter approach.” Another tool, Tribridge Pretrial360 is a set of solutions to help agencies deal with pretrial management more effectively. It has three distinct modules to focus on different areas of pretrial management: Defendant Management, Supervision Case Management, and Risk Assessments. Essentially what the program does is consolidate a wide range of
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info—from the court, previous offender information, etc., from a behavioral standpoint, says Tribridge’s Schloemann. From it, users can develop a report with a snapshot of key metrics for the judge to make a decision. Getting this information from a single system typically isn’t happening today, he furthers. “It is a disjointed process, it is not easy to assemble [the data], and it’s very heavy and paper based,” Schloemann points out. “Our solution allows all the information to go into one system.” Some of the metrics within Pretrial360 include: Criminal history tracking, mental illness, pending charges, past FTAs, and ability to track a monitoring device. It has recently been deployed by Mesa and Wells Counties in Colorado.
Moving from a resource- to riskbased decision model, he emphasizes, “can have a profound impact on recidivism rates. Statistics show that by just staying one night in jail, offenders are more likely to go to jail again.”
Pretrial Electronic Monitoring Pilot
Nash County, North Carolina, Sheriff’s Office, a somewhat small department with 80 sworn officers and 50 jail personnel, has been providing a pretrial release program for the past several years. Located near Rocky Mount, about 60 miles east of Raleigh, the area is mostly rural and farmland, with about a 100,000 residents spread over 600,000 square miles. The department typically tracks about 10 to 15 people, says Deputy Randy Van Houten, mostly low-level
offenders who can’t afford bail. Van Houten explains that with the distance separating them and the unreliability of cell phones in wooded locales, he has worked with quite a few vendors’ equipment. Some of it didn’t work and some of it was just big and bulky, especially the personal tracking unit that offenders have to carry with them that stigmatized them as a criminal, he notes. Another issue he found was with the ankle bracelets, which, if not kept clean, can cause skin infections but when users tried to clean behind them, the band would come undone and backplate would fall off, causing repeated false alerts. Nash County is running a pilot program with the Corrisoft AIR program, which has a smartphone serving as a tracking device that the offender can hide in his or her pock-
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et or purse. “Offenders love it because they saw we were trying to help them,” he says. In addition, it saves the county a bundle. It costs about $8 a day compared to an estimated $60 a day to have someone in jail, he says. In fact in 2015 it saved the county about $109,000—and that is without medical costs. Because the jail is relatively small, housing about 250 (in contrast, neighboring Wake County holds about 1,200), it doesn’t have 24/7 medical. After 11 pm, they send any medical emergencies to the local hospital with a deputy, he says. With offenders that have heart disease, diabetes, gout, and even one
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Chronic illnesses and pregnancies can be better handled by patient’s own doctors if they are deemed low risk offenders and offered pretrial release.
on dialysis, the latter of whom needed to be accompanied by a deputy three times a week for a six hour process, “cost savings are great” for monitoring in the community. “They can go to work, to their regular doctor. They receive medical care we can’t provide.” Pre-adjudication medical costs were also an issue with the St. Lucie County Pretrial Program in Florida. “The biggest thing we stumbled on is paying medical costs,” says Mark Godwin, criminal justice coordinator. Offenders, for example, might be pregnant and deliver a baby, then be treated at the mental health facility for postpartum depression. “Our local hospitals charge counties about 200% more than Medicare costs,” he says—and they were seeing this on a daily basis. “Once we put them on the program they can be on their own insurance.” St. Lucie carries a caseload of 150 to 200 offenders supervised daily, with about 65 on electronic monitoring. “We put them on as a sanction while they’re in drug court,” explains Ivelisse Chico-Randazzo, pretrial program manager, St. Lucie County Pretrial Program. “We add the extra layer of supervision,” she says, so they can go about their
lives. She says they contract with Satellite Tracking of People (STOP) for electronic monitoring equipment, and with a staff of 10 (one person is on-call overnight) they can monitor remotely from a computer any time of the day or night. “We can track when they are at their place of business, go to meetings, we even see them leaving to get the school bus.” In one case the monitoring technology tracked an offender that broke into an off-site police evidence storage unit where marijuana was stored from a grow— even providing police with the window that was breached. Judges bought into the program “when they saw the doomsday projections for the jail,” says Godwin, which was then 1,300 beds, but was projected for 1,700 to 2,000 beds based on population increases. It has since remained at about 1,300, and because pretrial staff is located in the courthouse, it gives the judges the confidence to work with us, he details. The program has been successful. Since it was put into place in 2007, neighboring counties are seeing the benefit and catching on. Lately they have begun contracting with St. Lucie County to handle monitoring for them.
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