Pretrial services program offers a solution for multiple problems
Without a new pretrial services program offered through Olmsted County Community Corrections, Douglas Ray Howard says he would have likely sat in jail, unable to make bail, awaiting trial on drug charges.
“It would have been majorly different outcome because I wouldn’t have had a chance to take care of anything,” he said. “A man who has nothing takes care of things differently than a man who has something, and this is a result of this program.”
In the four months that the program has been an option, judges have referred more than 200 people to it. The program is for people who have been charged with a crime, but are assessed as not posing any public safety threat. Program participants are assigned a pretrial services agent who, at a minimum, reminds them of upcoming court dates but can also do required check-ins and help a person connect with the services they need. It gives judges a non-monetary option to better ensure a defendant will return to court.
Howard, with another program participant, Anne Marie Jessen-Ford, both spoke highly of it in a recent interview. On that day, Jessen-Ford officially finished her time with the program after being convicted and sentenced on the charge for which she was arrested.
Jessen-Ford said that without pretrial services agent Niles and one of her colleagues, she doesn’t know where the couple would have been.
Howard said: “It gives people a chance to show they are not all about what they have been charged with.”
Knock on wood
While it is still too early to tell how successful the program is, many stakeholders have had positive things to say about it.
Cautious not to jinx the program, Travis W. Gransee, director of Dodge-Fillmore-Olmsted Community Corrections, knocked on wood before saying that, overall, the program is going well.
“There are certainly people that have been returned to the community that have then struggled with some of their release conditions and that have been returned to custody, so I don’t want to give the impression that things have gone super, super,” Gransee said.
For those low- and moderate-risk clients and even high-risk clients who would have previously sat in jail, unable to make bail, Gransee said the program has been able to manage them in the community.
“The percentage of those that have been returned to custody is still pretty small,” Gransee said.
There has been some anecdotal feedback from clients who have been through the criminal justice system before but this time recognize the program as something different, Gransee said.
The pretrial program was created to address multiple issues — including a jail nearing capacity and a push nationally for pretrial reform.
“There should be another alternative for folks who can’t afford to make bail,” Gransee said. “We had a problem, we had a solution and, oh, by the way, the solution is also a solution for about three or four other things.”
How it works
On Monday morning, Nikki Niles and her colleague Jamie Gascho went through the day’s arraignment list in advance of heading down to the Adult Detention Center’s gym to meet with individuals who had been arrested over the weekend.
A few red lines crossed out the names and charges of those would be ineligible for the pretrial services program. If the person is in custody on a probation or family matter, they would be ineligible. The same is true if it’s a child support issue or a criminal charge that is low enough to not warrant any sort of monetary bail/bond amount.
As Niles and Gascho arrive to the gym at the ADC, a stack of completed pretrial assessment forms await them. One by one, the men and women waiting in the gym are called to sit with Niles or Gascho and go over the questionnaire. If one hasn’t been done, they fill it in for the person as they ask each question. If the person has filled out the form, they still get asked each question again and are given a chance to expand on their yes or no answers. Notes are written on the sheet that will help Niles or Gascho once they go back to their offices to input the assessments.
Sitting with a client, Niles introduces herself and explains briefly what will happen in the coming hours.
“You will go to court,” she said. “Recommendations will be made about your release.”
That could mean monetary bail/bond is set or the person could be released to the pretrial services program without monetary bond.
The Pretrial Services Program, Niles continued, is not probation and has two goals — making sure a person appears in court and ensuring public safety.
The questionnaire is used to create a report that is then given to the defendant’s attorney, prosecutors and the court, and it can be used to make arguments over the person’s release.
Heading back up to her office, Niles will use the assessment in addition to information on the person’s criminal history, conversations with someone’s probation officer if they are currently on probation and details from the brief conversation with the person that don’t fit in a yes or no checked box.
The end of bail?
Lawsuits have been filed across the country alleging that setting cash bail unattainably high is unconstitutional. Organizations such as the American Civil Liberties Union would prefer to entirely do away with a cash bail system.
“We abolished debtors prisons in this country decades ago, and the notion that somebody would sit in jail because they do not have financial resources is just anathema to our sense of justice in this country,” said Teresa Nelson, legal director of the American Civil Liberties Union of Minnesota.
Historically, the only tool prosecutors have had to ensure a defendant returns to court is bail, Olmsted County Attorney Mark Ostrem said. But bail, he said, can sometimes be onerous.
“The idea behind this whole pretrial services program is really to try and remove that monetary condition and still give the court and all the participants some satisfaction that the defendant will be back and we can monitor their public safety,” Ostrem said. “We are not trying to supervise these people but we are trying to, let’s say, use some gentle reminders that they are supposed to be back in court. There are other tools we can use to ensure their public safety but we don’t need to force some sort of a monetary condition on them to ensure that they come back.”
Steps have been taken to make Minnesota’s court system more uniform. The Minnesota Pretrial Assessment, which is modeled on an assessment created in Hennepin County and has been “statistically validated,” is now required to be completed in all jurisdictions. The assessment’s goal is to look at an individual’s risk factors through a series of questions. But some find the questionnaire problematic.
“The idea of having a tool that is statistically validated is a good instinct, but unless you are cognitive about the limits of data and the limits of algorithms in eliminating racial biases, you are going to be replicating systems of oppression for people of color,” Nelson said.
She said it was important to look at the individual circumstances of a person.
Olmsted County commissioners approved approximately $290,000 to fund three employees to run the pretrial services program. All three pretrial services agents have been with Olmsted County Community Corrections for a number of years.
Olmsted County Sheriff Kevin Torgerson said the hard costs to house one detainee is $200 per day. If a detainee is being housed in Olmsted County for another county or for the Department of Corrections, they are invoiced for $55 per day, Torgerson said. The vast majority of those at the Olmsted County Jail are there pre-trial, meaning they have not been convicted of a crime and are therefore, not serving a sentence.
The daily average number of people has gone down since it spiked in 2015, 2016 and 2017 to 155 people per day, Torgerson said it was too soon to say how big of an impact the program has had on jail population numbers.
The conversation about alternatives to incarcerating people who can’t afford bail began more than five years ago when the jail noticed a spike in numbers, according to Torgerson.
Getting some people out during pretrial might allow them to keep their jobs, Torgerson said.
“The charge doesn’t go away but at least being able to get them out, maintain some sort of lifestyle, hopefully it would be a positive one,” he said. “Get them out, get them home and yet still keep track of them and make sure they aren’t causing more trouble out there, we are all better for it.”
The program doesn’t just benefit those charged with crimes but also benefits the wider community.
“Any time people are in the community, working on their sobriety, working on gainful employment,” said Lauri Traub, managing attorney for the Rochester office of the Public Defender Third Judicial District, “those are good things for the community.”