County implementing pre-trial assessment tool in hopes of reducing jail population

Cascade County has adopted a public safety assessment tool in what they hope is a way to help reduce the county jail population.

The jail is designed to hold 365 people, Sheriff Jesse Slaughter said on Friday, when the jail population was 428.
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Overcrowding at the Cascade County Adult Detention Center has been chronic for years and the average daily population for the last two years has been 475, Slaughter said.

In 2018, the overcrowding was a factor in a riot at the jail that involved more than 40 inmates.

Certain crime rates have also been increasing, according to County Attorney Josh Racki and in 2019 there were 924 new felony criminal cases files, up from 527 in 2011.

Much of that increase has been attributed to drugs.

The tool is essentially a risk assessment algorithm designed by the Laura and John Arnold Foundation and being used by the Montana Supreme Court with a pretrial pilot program approved by the 2017 Legislature and continued by the 2019 Legislature.

Cascade County is using the assessment through the Montana Supreme Court at no additional cost.
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The pilot program provided funding for counties to develop pretrial programs. The counties included in the pilot include Butte-Silver Bow, Lake, Lewis and Clark, Missoula and Yellowstone, according to Montana Supreme Court documents.

According to a November 2019 Helena Independent Record article, Flathead County started using a PSA that month and Gallatin County had requested a presentation to get more information about the tool. According to Gallatin’s website, the county appears to use it’s own version of a risk assessment profile.

In October 2018, The Electric reported that the state had offered access to the PSA tool to Cascade County, according to county officials.

This week, County Commissioners approved an interlocal agreement with the Montana Supreme Court for using the tool.

The court enters information about someone who has been charged with a crime, felony or misdemeanor, and the algorithm determines their scores with a matrix that considers the public safety risk and needed pre-trial monitoring.
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In Cascade County, district court judges still have discretion for keeping a person in jail or imposing other requirements if they felt it necessary, Racki said. Prosecutors would get the PSA results and use them to argue bail.

When a new felony charge is filed, the county will send information to the Montana Supreme Court that will be entered into the PSA tool. The algorithm will assign a score to the defendant based on past criminal activity, failures to appear and other factors. Racki said the tool no longer considers most biographical information such as race or gender since it didn’t appear to affect the outcomes, but age was a factor in the likelihood of committing another crime while out of jail awaiting trial.
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For someone with a level one score, county attorneys will ask judge to release a person on their own recognizance with the exception of homicides, violent and sex related crimes, or others with extenuating circumstances.

For level two scores, county attorneys will ask for a minimal bond, likely in the range of $5,000 to $7,5000, Racki said.

For level three scores, county attorneys will ask for $10,000 bonds and above since those would be people with a higher likelihood of reoffending, Racki said.

“We’ll see how it works,” he said.

They’re hoping that this tool will help attorneys and judges make more informed decisions regarding bail and keep more people out of jail while awaiting trial and still maintain public safety.
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District court judges will be given the PSA score, criminal charge and the county attorney’s recommendations for bail but the judges have discretion over whether they choose to use the score.

For example, this week, the first felony charged since the PSA was adopted in Cascade County was a sexual crime. The tool scored the first time offender as a 1, meaning a low risk who could be released on his own recognizance. The judge ignored the score and set a high bond.
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Racki said that the tool doesn’t account for first time offenders very well, but they have run the test against offenders in the jail as a test and the system as been tested in other jurisdictions so they have some confidence it the scores validity.
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Based on state data from the PSA pilot programs, 97 percent of nonviolent, first time offenders went through a PSA and were released made their court appearances, according to a November 2019 Helena Independent Record article. Of those, 95 percent did not reoffend, according to the article. Five percent had a misdemeanor charge and two percent had a felony charge, according to the article. Some of those may have been overlapping felony and misdemeanor charges, according to the IR article.

The pretrial risk assessment tools have been criticized for perpetuating racial disparities within the criminal justice system and in July 2018, more than 100 civil rights groups signed a statement of concern asking jurisdictions to stop using the tool, according to a September 2019 Atlantic article.

“Activists argue that the algorithms are fundamentally flawed because the data they use to predict a person’s risk could be influenced by structural racism: The number of times someone has been convicted of a crime, for example, or their failure to appear in court could both be affected by racial bias. As a result, they say, any bias that’s baked into the data is replicated by the algorithms, but with the veneer of scientific objectivity,” according to the article.

A February 2019 report from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge found that “research demonstrating predictive validity does not equate with research demonstrating implementation success. Indeed, even a well-validated tool may not produce the intended results of more accurate, decarceral, and racially and ethnically equitable decisions relative to practice as usual for many reasons, including problems with implementation.”

The report states that most research on pretrial risk assessment tools to date has primarily focused on predictive validity, but those research methods often fail to meet standards in the field of risk assessment or standards nor has their been independent evaluation of the research.
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“There has been less research conducted on the implementation of pretrial risk assessment tools. As a result, their impact on pretrial decisions and outcomes is
unclear,” according to the report. “To the extent that jurisdictions adopt pretrial risk assessment tools, the implementation should be accompanied by an independent evaluation of the relationships between the items, risk estimates, and pretrial outcomes in that jurisdiction, as well as the degree to which the implementation contributes to more equitable and less carceral decisions.”

The tool is meant to be implemented, according to the Arnold Foundation that created it, with a robust pretrial monitoring program, which Cascade County does not currently have.
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“A jurisdiction that aims to improve its pretrial justice system must examine a broad set of improvements that impact different pretrial decision points; implementing a pretrial assessment alone is not the answer,” according to the Arnold Foundation website.

“We freely acknowledge this is not exactly how it’s supposed to work,” Racki said.

County Commissioner Jane Weber said the county looked into creating a pretrial monitoring program but the cost would be about $500,000, resources the county doesn’t have.

“We just could not find the means,” she said Friday.

Racki and Slaughter said the county is working on releasing a request for qualifications for various monitoring services that would be available to the court that would be paid for by the offenders.

They said the problem with that is people who can’t afford bail, likely also can’t afford monitoring services.

Slaughter said he hears that argument but finds that those people often buy candy, pop, phone calls, and “it seems like they have a lot of income coming to jail for services.”

But the officials said they are also looking at options for county funded monitoring to clear people out of the jail while awaiting trial.

Slaughter said they have to try other things before expanding the jail, a costly task. He said he wants to revamp the county’s contracts with state and federal agencies for jail services to potentially free up beds while maintaining revenues. He said he also wants to look at developing a work release program.

“We could be completely wrong and this could do nothing for overcrowding,” Slaughter said. “But we’ve got to try something.”

District court judges currently have the option to order defendants to be monitored if they are released while awaiting trial. Judges regularly use such monitoring for participants in the drug court and veterans court programs, though those individuals have been convicted. Any of those monitoring services report violations of the offenders conditions of release to the county attorney’s office.

Racki, Slaughter and Commissioner Jane Weber said they wanted to release the RFQ to gather information on services, prices and vet the services in order to start developing a pre-trial package available and potentially contract with those vendors though district court judges would have no obligation to use any of the vendors selected by the county.