Pretrial Process Considerations for Crime Victims
Cherise Fanno Burdeen, Jeffrey Dion  -  2013/2/6
http://ovc.ncjrs.gov/ovcproviderforum
 
 
Ms. Burdeen, please explain more about your program and how it started.What differences to you see in victims who partipate and those who don't?
 
1.  Jeff Dion
 Cherise, if victims have a particular safety concern, can they coact pretrial services so that information is considered as part of the assessment of eligibility?
 
2.  Jeff Dion
 The answers vary widely among jurisdictions, but there are basic questions victims should ask. How likely is it that the offender will be released from jail pending trial? How soon will they get out? Who decides if they can get out? Will anyone tell me if the offender is released? Iím afraid and the offender has threatened me. Whom should I tell? If he gets out, who is watching him? Who will make sure he comes to court? If he doesnít show up, who is going to get him? If there are conditions of release and he violates one, who do I report that to?
 
3.  Cherise Burdeen
 Another benefit is having people assessed for risk at the start, so that those too dangerous for release are identified and detained, rather than allowed to bond out. This requires your state to have a mechanism to detain dangerous people, not just detain certain offense types (such as capital offenses). Many states do not have this mechanism and thatís something weíre hoping to help change.
 
4.  Cherise Burdeen
 As to the victim involvement, the benefits to victims of having this function (can be a stand-alone program, within a sheriffís office or jail, or probation department) are numerous. The most obvious one is having a place to raise issues or concerns about the compliance of the defendant with the conditions of release (stay away orders, curfews, reporting in, abstaining from drugs or alcohol). Because there is a legal entity monitoring the conditions order by the court, set to mitigate their risk not just of failing to appear but also more importantly of not committing additional crimes/victimization, community safety (and victim safety) is enhanced.
 
5.  Cherise Burdeen
 Once the judge makes a decision, a pretrial or probation function within the county supervises the court-ordered conditions of release. Or thatís how it should work. In reality, pre-fixed dollar amounts are tied to the crime for which someone was arrested, and most people have the chance to bond out of jail before seeing having their risk assessed or seeing a judge. Under that system, there are no conditions of release being monitored by anyone and the bond may only be forfeit if the defendant fails to appear in court. So public safety is not addressed. We at PJI are working to close this loophole in the system.
 
6.  Cherise Burdeen
 Thanks for the question. The Pretrial Justice Institute is actually not a direct service provider. We are a nonprofit organization that advances safe, fair and effective pretrial practices and policies across the country. But to answer your question, a pretrial program (or function) within a jurisdiction (typically a county) provides the court with a neutral, objective assessment of a defendantís risk of failing to make court appearances or being rearrested while the case is pending.
 
 
what is the best strategy to get a prosecutor to accept a case when the victim has Autism, is non-verbal and uses AAC in the form of RPM or FC supported typing?
 
1.  Cherise Burdeen
 Thanks for your question. Unfortunately, I can't help answer this as it's outside the scope of our work.
 
 
As part of the pretrial process, do you address with victims, and offenders, the notion that crimes against anyone is a crime against everyone - i.e., society? This nuance would seem to be extremely important in dealing with victims that incorrectly feel "shamed" or fear by being victimized. It also addresses the attitude or perspectives of the perpetrator that assumes they are the "victim"; they need to get "even" which puts the original victim under the danger of retaliation. If we can truly achieve this belief system regarding the crime, won't victims recover sooner; collaborate more effectively throughout the criminal justice process? Could this address bystander negligence? Wouldn't there be greater success in preventing crime?
 
1.  Cherise Burdeen
 Thanks for your question, unfortunately, it's beyond the scope of our discussion today. The pretrial process is dedicated to assessing a defendant's risk to the community and the integrity of the judicial process, and fashioning risk-based conditions of release to be monitored by community-based supervision resources. While it may be counter intuitive, research shows that serving time in a facility actually increases recidivism. So strategies to ensure the right people are incarcerated pretrial are vital to long-term recidivism reduction.
 
2.  Jeff Dion
 Any change in the defendant's attitude would probably be addressed in the corrections system rather than pre-trial, however, Victim safety is an important issue and should be considered when determining eligibility for release.
 
 
It is good to be with you. In a recent Washington Post article, Leonard Sipes of the DC Pretrial Services Agency said it best, ďThe only way to stop all criminal activity is to incarcerate someone until trial.Ē The sad reality is we canít afford to keep everyone incarcerated while they await trial, so we have to decide who will be released and how will that decision be made? The main considerations for release generally are 1) if we release this defendant will he or she show up for trial; and 2) is this defendant a threat to anyoneís safety. Both of those are very important to victims. Victims canít get justice if the defendant isnít there for trial, and no one wants to see a victim harmed by a defendant who was in jail but was released. These are the issues we will discuss today.
 
 
Is an assessment done on the impact to the victims when a defendant is released pretrial? Wondering also if there are any studies on repeat victimization during this pretrial period?
 
1.  Cherise Burdeen
 The vast majority of those released in Dallas are released via commercial surety, so the 50% failure to appear rate is really fascinating there. Researchers are asking the Texas-based group for their data to be able to examine the nature of the issues there, so we hope to have more insight into Dallas if that is provided.
 
2.  Jeff Dion
 It is not accurrate to say that "Most defendants can pay a pre-set dollar amount and leave the jail unmonitored." The quesion is who is monitoring them and at what level and how are those supervising release held accountable?
 
3.  Jeff Dion
 Actually, Failure to appear is a significant problem. Recently 50% of the felony warrants in Dallas, Texas were "unavailable for prosecution" because the defendants did not show up.
 
4.  Jeff Dion
 Cherise, How are victims usually notified of how to report violations of a condition of release?
 
5.  Cherise Burdeen
 To your second question, the incidence of pretrial rearrest nationally is rather low. Most people released pretrial make all their court appearances and remain arrest free while their case is being adjudicated. That being said, most jurisdictions DO NOT have the capacity to conduct risk assessment or supervise the court-ordered conditions of release. It's a real problem for community safety - insofar as the identification of those who present a real danger to a specific victim or community isn't done. Most defendants can pay a pre-set dollar amount and leave the jail unmonitored.
 
6.  Cherise Burdeen
 In addition, the pretrial supervision function offered can monitor those conditions and provide a place for a victim to notify the court if the defendant is in apparent violation of those conditions.
 
7.  Jeff Dion
 There certainly are instances of repeat victimization. The problem is that in most jursidictions the problem is that a release bond is a bond to appear in court, not neccesarily a performance bond. It is also a question of supervision. As for impact on victims, their safety should be considered, but only about 30% of pretrial services programs get information from victims, so we need to be sure that information is obtained by law enforcement so it can be considered
 
8.  Cherise Burdeen
 Thanks for your questions. Because of the legal status of a defendant, and the legally allowable purposes of bail, an assessment is done on the likelihood someone will make all their court appearances and remain arrest-free during the pretrial phase of the case. Then, once that decision is made, courts can affix conditions of release that take into account the needs of the victim (such as the issuance of stay-away orders, the use of electronic monitoring or GPS units, drug testing, curfews, etc).
 
 
What courts or jurisdictions are models of implementing the best practices for pretrial services for crime victims?
 
1.  Cherise Burdeen
 Great question. DC Pretrial Services here in the District of Columbia has a great program. Hamilton County, Ohio, does also. The key is providing meaningful risk-based conditions of release PLUS an accountable function that can enforce those conditions and report to the court when they are being violated. This allows victims to have access to information that can aid in their safety. Another great new program in is Ramsey County MN, where the new research on the effective use of GPS with domestic violence defendants is being implemented.
 
 
If the focus is to change the bond system from a numerical equasion, based on seriousness of the crime and the history to the defendant, to one that involves individual assessment prebond, how successful has it been getting larger municipalites to convert.
 
1.  Cherise Burdeen
 And Ms. Long - pretrial risk assessment isn't focused on one type of crime (property versus personal) nor level of crime (misdemeanor versus felony). In high-functioning communities, pretrial risk assessments are applied to all those taken into custody, prior to their ability to be released under any mechanism. If you can say where you're from, I'm happy to refocus any comments I have made to your specific jurisdiction or you are welcome to contact me directly.
 
2.  Cherise Burdeen
 The assessment done by commercial bail bondsmen (insurance industry) is an assessment of flight, not of public safety. They are not legally responsible for public safety, and bonds cannot be forfeit if the defendant commits a new crime, so that kind of risk assessment is far different than what the law requires judges consider.
 
3.  Cherise Burdeen
 And just to piggyback on Jeff's comments, all the pretrial programs in existence today use automated data systems to verify a defendant's identity, criminal histories, etc. If they collect information about employment or residence, and most do, that information is verified before the pretrial report is submitted to the court. It should be noted, also, that most valid, pretrial risk assessment instruments have about 7 risk factors on them, and they are nearly all records-based static factors, not self-report dynamic factors.
 
4.  Melanie Long
 Our community DOES take into account the history of offenses - do you find this to used primarily with personal crime as opposed to property crimes? Or are all felony crime bonds assessed in this way.
 
5.  Jeff Dion
 I would like to see a judge make an informed decision on flight risk, but even in jurisdictions where there is not a pretrial services risk assesment, that doesnít mean no risk assesment is taking place. Commercial bail bonds usually run a risk assesment before bailing someone out, just like your insurance company looks at your driving record before they write you an insurance policy. The problem is that courts are not always consistent in making bondsman forfeit the bond when a defendant fails to appear and that can skew the system.
 
6.  Cherise Burdeen
 Having said that, about 300-400 pretrial programs (plus all 94 federal districts) currently use some form of assessment process for defendants who do not post bond before their first appearance in court. This is not ideal, but it was an advancement from having zero places that did this pre-1960s. Most of the nation's 150 most populous counties, accounting for nearly all the criminal case filings in the country, have some kind of pretrial services function. In just the last few years, several states have passed legislation requiring that all those booked into jails be assessed for risk of failing to appear or being rearrested before being released. KY, DE, HI are three within the last two years. So, systems small and big are moving in this direction.
 
7.  Jeff Dion
 Some jurisdictions have been successful in using evidence-based risk assessment models. But there also needs to be an effort to verify the information provided by the defendant. The defendant should not be the sole source of information on which the risk assessment is based.
 
8.  Cherise Burdeen
 Great question - let me just clarify what the change really is from. Currently, bond schedules are 100% focused on the crime for which someone was arrested. They do not have the capacity to take into account prior criminal history, or any other risk factors. They are pre-set amounts that anyone charged with the same crime would get, regardless of their background or risk.
 
 
do you know if the gov't or private organizations have funding available to implement pretrial programs?
 
1.  Cherise Burdeen
 The funding that goes to states through the Justice Assistance Grants (JAG, formerly Byrne) issued by the Dept of Justice's Bureau of Justice Assistance can be used to support county-based pretrial services (doesn't have to be a program, can be the funding of the functions of pretrial within existing structures). Often, however, we work with jurisdictions to redesign systems and redeploy existing resources to implement the legal/evidence-based pretrial practices of risk assessment and supervision based on the risk/needs principle.
 
2.  Jeff Dion
 Pre-trial service programs are generally government funded, but represent an opportunity to spend less money on local jails by making a better determination of who really needs to be incarcerated pre-trial.
 
 
I'm not very familiar with the pretrial process, so I'm not sure at what point a victim advocate can become involved and what his/her role would be. Can you start with the basics? I'm in Massachusetts.
 
1.  Cherise Burdeen
 Jeff's answers are spot-on. Unfortunately, MA does not have pretrial services, but I believe conditions of supervision are enforced by probation. The role of the victim is to work through the prosecutor's office to ensure that his/her concerns are voiced, that any fashioned conditions of release can in fact be complied with. Often, victims can help pretrial supervision officers by notifying them of alleged violations, especially important when safety is at risk.
 
2.  Jeff Dion
 You as an advocate should know how that decision is made in your jurisdiction and find out if the decision maker will accept victim input.
 
3.  Jeff Dion
 The answers vary widely among jurisdictions, but there are basic questions victims should ask. How likely is it that the offender will be released from jail pending trial? How soon will they get out? Who decides if they can get out? Will anyone tell me if the offender is released? Iím afraid and the offender has threatened me. Whom should I tell? If he gets out, who is watching him? Who will make sure he comes to court? If he doesnít show up, who is going to get him? If there are conditions of release and he violates one, who do I report that to?
 
 
What are some issues victim advocates have to overcome when discussing this pretrial process with the victims?
 
1.  Jeff Dion
 I think it is always a matter of "should this person be released?" Yes, there is a legal presumption of release, but the system has an obligation to determine if the defendant is a flight risk or danger. There is a legal presumption of innocence, but that does not keep trials from being a question of "is this person innocent?"
 
2.  Cherise Burdeen
 I think the most important thing is this: it's not a matter of "should" the person be released pretrial. The laws in nearly every state call for the presumption of release on the least restrictive conditions to assure appearance and community/victim safety. And in every state, defendants with the money to walk out of jail unsupervised can. The main issue is lack of awareness about 1) how the system operates today, 2) what tools exist to make the system safer, and 3) how victims can demand the system use those tools. The goals of the pretrial process are the same as that of victims - safety, transparency, and accountability.
 
3.  Jeff Dion
 I think the main issues are setting appropriate expectations with victims. Letting them know that the defendant could be released. That the victim has a right to be notified about bail hearings. That the victim should be prepared to report any violations of a condition of release.
 
 
How best is it to deal with the victims' feelings of being revictimized, since their offender is released prior to hearing?
 
1.  Jeff Dion
 Victims need to understand that the defendant has not yet been convicted and has a constitutional right to least least restrictive form of detention that will secure his appearance at trial. That said, if there is a safety concern is should be raised immediately, and there should be safety planning with the victim.
 
 
All this information is very informative. Is there a checklist or published risk assessment tool that should be used, or does every jurisdiction make up thier own?
 
1.  Cherise Burdeen
 http://www.pretrial.org/Pages/bail-decision.aspx has a good deal of information specifically about pretrial risk assessment. There are a few model pretrial risk assessment instruments that have been validated in multiple jurisdictions. These are based on data collection and analysis of the predictors of risk - these are not qualitatively derived, or consensus based, subjective tools. We do not recommend jurisdictions making one up on their own. There are free resources available to aid jurisdictions, just reach out to us at PJI.
 
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