Pretrial services unit established
In the planning stages for more than a year, a pretrial services unit has been established by Montgomery County court officials who say it is a significant component of the criminal justice bail reform movement.
The unit, according to a mission statement, will provide accurate and timely information to assist the court in making informed decisions regarding pretrial release; to supervise and provide services for defendants while utilizing cost effective measures for the community; to promote compliance with court orders and court appearances; and to support public safety.
Court administrators have recognized a need for a more standardized process for gathering and reporting information needed to make risk-based decisions, which are key factors in determining whether defendants are released or detained pretrial.
“The lack of pretrial services in Montgomery County has been identified as the largest gap in our criminal justice system. There has been a push statewide for all counties to have pretrial services programs. Over half of the counties in the state currently do,” said Michael Kehs, county court administrator.
“The consequences of pretrial detention on the defendant, their family, and their job is often severe. The Pretrial Services Unit will help ensure that eligible defendants receive any necessary services while awaiting trial, are complying with their conditions of release, and remind individuals of upcoming court dates with the goal of equitable treatment of all defendants independent of their ability to afford bail,” said county Commissioners’ Chairwoman Dr. Valerie A. Arkoosh. “It’s very encouraging to see how far this work has come.”
The board of commissioners recently endorsed the court’s plan and approved the hiring of a director of the Pretrial Services Unit, who will implement the plan, at an annual salary of $100,000.
“It is our goal to have this program operational as quickly as possible,” county President Judge Thomas M. DelRicci said recently, adding, however, the program is not a reaction to recent public demonstrations for criminal justice and bail reforms. “As important as the demonstrations and the public outcry has been, and it is important to hear those voices, this program is not a reaction to that. This program has been in development… with all of the stakeholders since (January 2019).”
Pretrial services programs can be valuable resources for making significant improvements in the criminal justice system because they are used in the early stages of the criminal case process, officials said.
“The reality is that too often if you can make bail, you are set free, and if you are too poor to make bail, you are punished prematurely,” said Kenneth E. Lawrence Jr., vice chairman of the board of commissioners. “No one should be held in custody awaiting trial solely because of their inability to pay bail.”
Defense lawyer Adam Zucker, co-chairman of the Montgomery Bar Association Criminal Defense Committee, said it’s important that the county is looking at a pretrial services program.
“I think that it is equally important that they consider the involvement of defense counsel in any pretrial services program to assist in having the proper bail and a fair bail set for the client. I do not think that you can take counsel out of the process. That would not be fair to the defendant,” Zucker said. Criminal defense lawyer John I. McMahon Jr. of Norristown called the bail reform proposal “great news.”
“As a criminal law practitioner in Montgomery County for over 30 years, I’m well aware of what some of the problems historically have been with our bail system. To have a uniform system in place will be a big step forward,” McMahon said. “My hope is that the focus of the methodology will be grounded on the presumption of innocence of all citizens accused of crimes.”
Bail eligibility
Kehs, who also serves as chairman of the county Criminal Justice Advisory Board, said under the program, all defendants who are arrested and processed at one of the county’s central booking centers, eligible by law for pretrial release, will be considered for release.
While court officials will preserve a monetary bail system in the county, pretrial release adjudications will coincide with the least restrictive conditions that insure appearances at subsequent court proceedings and simultaneously protect public safety, officials said.
DelRicci stressed when individuals are arrested “they are merely accused, they are not convicted.”
“They do not lose their rights as free citizens of our Commonwealth or of the United States. The law provides for consideration of bail,” DelRicci said.
Those bail decisions can include: the denial of bail, usually reserved for the most serious of offenses or most serious flight risks; the imposition of cash bail; the imposition of conditions; or release on one’s own recognizance.
“We know that pretrial incarceration can have adverse effects on the life of the accused and on society in general. People lose their jobs while they’re incarcerated, their homes, their possessions and sometimes their families and the burden on our community and the cost of incarceration and ancillary effects of pretrial incarceration are numerous,” DelRicci said.
Bail, DelRicci explained, is established to insure that the accused appears at future proceedings and in a way that protects the public.
“It is not to be used to supervise or to punish, because that person is only accused at that point in time, or it should not be used as leverage to obtain a conviction or a guilty plea or to send some sort of societal message,” DelRicci said.
“Bail must be consistent with the criminal rules and with the laws that apply to the setting of bail. It should also be consistent across the jurisdiction. There is no rational reason that two similar individuals, charged with similar offenses, should have different bails set depending on what part of the county they reside in or what judge they appear before,” DelRicci added.
“Bail considerations also should not adversely affect those with lesser incomes, people of color, people with mental health problems, addictions or other illnesses,” DelRicci continued. “Most importantly, it should be applied in a way that is the least restrictive way to meet the goals of ensuring that the defendant appears at trial and safeguarding the public.”
DelRicci said traditionally, bail decisions were made quickly on the basis of incomplete information and a reaction to the accusations against a defendant.
“The program that we are presenting will change that in a fair and safe way,” DelRicci maintained.
Pretrial intereviews and risk assessment
Under the program, Kehs said, pretrial services interviews will become part of the booking process, during which information will be gathered about a defendant’s background, employment status, home ownership and health.
“Information will be entered into a case management system and then pretrial release decisions will be made and they will coincide with what is known as ‘the least restrictive conditions’ that ensure the two keys identified in our mission statement, appearance at a subsequent court hearing and the protection of public safety,” Kehs said.
One of the hallmarks of an effective pretrial services program, DelRicci said, is the development of a locally validated pretrial risk assessment tool to gauge a defendant’s likelihood of failing to appear or reoffending. Officials intend to have the risk assessment tool independently evaluated, possibly by a university, to make certain that there is no inherent bias in the tools the county intends to use for the risk assessment.
“Drug and alcohol questions are also incorporated into the assessment tool so that we can assist people with proper referrals during the period of time up until their trial so that we can adequately protect them and also get them the help they need and also obviously reduce the likelihood of future incarceration,” DelRicci explained.
However, some justice and bail reform advocates question the reliability of risk assessment tools, or algorithms, which don’t address specific characteristics of an individual. That’s why they say it’s important for defense lawyers to have a say and be present at defendant interviews and bail hearings.
“Those have been historically controversial because they’re based on previous data and because of racial inequalities… they’re just skewed and it leads to unequal outcomes. Those risk assessments use data that’s already problematic. A judge can have bias but so can a risk assessment,” argued Danielle Kwock Phillips, an organizer with PA Women Rise, a racial justice organization in Montgomery County.
“They’re generally not acceptable to criminal justice reform advocates but there is room, I think, for them to be made acceptable if we knew what kind of tool it was and what data it was based on,” Kwock Phillips added.
Kwock Phillips also suggested any plan should increase funding for the public defender’s office to make sure that lawyers are available to be present for an indigent defendant’s pretrial interview and bail hearing.
“Any time that they’re interviewing a client, deciding if that person should be assigned bail, there needs to be an attorney present,” Kwock Phillips said. “A client may not even understand the charges involved. They don’t understand what the judges are supposed to consider with bail, so how are they going to understand what to even necessarily say on their own behalf during an interview?”
Under the county program, once a risk assessment tool is applied, a recommendation regarding a defendant’s pretrial release will be provided to a judge.
“The important part of this is we are providing our judges with information. We are not taking the discretion away from judges but we are providing them with useful information in making the assessment of what to do with an individual once they are brought before the judge,” DelRicci said.
“If the judge chooses not to follow the recommendation, it is critical that there be an expeditious review,” DelRicci added.
Currently, if a lawyer, on behalf of a client, files a request for a reduction in bail that has been set by a district judge, it could take weeks to get a hearing.
“Our program provides for a goal of 24 to 48 hours of a review of any decision that is inconsistent with a recommendation of our agency so that we don’t take people off the streets and put them in jail simply because they have no financial ability to post a cash bail that was imposed. That cannot happen and that will not happen under this program,” DelRicci said.
While awaiting hearings, defendants would be monitored based on the assessed risk level, which can include: court reminders for all defendants; reporting by phone; reporting in-person; drug and alcohol testing; drug and alcohol treatment, including behavioral health treatment; electronic monitoring; or other provisions such as no contact orders and curfews.
In developing the county plan, Kehs said officials examined other program models in place in the state and nation. The proposal recommended by court officials previously was approved by the county’s Criminal Justice Advisory Board in 2019. Since then, officials have appointed an implementation committee that includes judges, district court judges, representatives from the district attorney and public defender offices and private defense lawyers.
“We continue to work as an implementation committee moving forward,” Kehs explained.