By G.F. Guercio, contributing editor
The top story in New York’s Newsday, late February edition, headlines: “Criminal Justice Reform” with explanatory headings saying, “N.Y. lawmakers eye bills on bail, discovery, trial.” A closer look across the country reveals revamping in many states and jurisdictions. In Kansas for instance, the Pretrial Justice Task Force is looking at bail reform statewide using risk assessment.
Robert Sullivan, county corrections director of Johnson County is a member of the state’s Pretrial Justice Task Force. He says the Kansas Supreme Court’s Ad Hoc Pretrial Justice Task Force is working to develop recommendations that will balance a defendant’s presumption of innocence with their risk of flight and risk to public safety in order to safely reduce or eliminate unnecessary pretrial incarceration in the state of Kansas. He says: “I was recently assigned to the Alternatives Subcommittee chaired by Judge Mary Mattivi, one of three subcommittees created: Appearance, Public Safety & Alternatives.”
Judge Karen Arnold-Burger, the Task Force chair, has charged the Alternatives Subcommittee with examining alternatives to pretrial incarceration that are in use in Kansas and around the country. “Furthermore, we are to examine programs that either keep individuals out of jail using pre-arrest alternatives or limit the amount of time a person remains in jail during the pretrial period of their case,” Sullivan explains. “My individual assignment on this subcommittee is to research programs that incorporate immediate mental health or drug abuse triage and placement in lieu of incarceration.”
Detailing more about the alternate jail or bail objective, Public Information Director Lisa Taylor, Kansas Supreme Court, Office of Judicial Administration, Topeka, adds that the Kansas Supreme Court formed the ad hoc task force in November 2018 to examine pretrial detention practices and will report its findings and recommendations to the court within 18 months. “The task force will examine current pretrial detention practices for criminal defendants in Kansas district courts, study alternatives to ensure public safety and encourage an accused to appear for court proceedings, compare effective pretrial detention practices and detention alternatives used by other courts,” she informs.
While the state of Kansas is currently researching pretrial alternatives, in Johnson County where Sullivan heads county probation and the adult residential and juvenile detention centers, the county has already been assessing pretrial risks for about 10 years. Johnson County has used a form of risk assessment since 2009 for minor crimes and the county has had a custom risk assessment based on its own arrest data since 2014 and has revised it multiple times. The system is currently being used to assess people who have been charged with crimes that are likely to carry a sentence of probation, rather than prison, with plans to expand that assessment to all pretrial cases, according to Sullivan.
The county teamed with Dr. Alex Holsinger, associate dean and professor in the Criminal Justice and Criminology Department at University of Missouri-Kansas City who has focused his research agenda toward risk and need assessment and the evaluation of rehabilitation and treatment programming. Analyzing data, Holsinger found that people who live outside the state are more likely to skip court and that prior arrests, substance abuse and unemployment round out the main risk factors.
Currently working on a revision he says, “Periodic tests of the relationship between each item in the risk assessment and the relevant outcomes have been conducted over a long period of time. It turns out that the behavioral health item was not as strong and reliable a predictor as we had originally observed in some of the original analyses. As such that item is being replaced by another item with better predictability: prior failure to appear.”
The assessment tool will also be expanded. According to Sullivan, “Our county currently uses the pretrial risk assessment tool to determine the risk of failure to appear on presumptive probation cases only. Several criminal justice stakeholders in Johnson County believe we should begin screening all pretrial detainees, to include those individuals charged with presumptive prison cases. This tool is only being used during the pretrial phase.” He adds, “If a defendant is sentenced to probation we use the Level of Service Inventory –Revised (LSI-R).”
The LSI-R, part of the family of risk assessment instruments provided by Multi-Health Systems Inc. (MHS), is often used in criminal justice settings as well as the Public Safety Assessment (PSA) for pretrial from Arnold Ventures (formerly the John and Lisa Arnold Foundation), and the Correctional Offender Management Profile for Alternative Sanctions (COMPAS) offered by Northpointe through equivant.
Says Becky Kelderhouse, general manager–Supervision, who runs the Northpointe business at equivant, “Assuming that the risk assessment instruments adopted by an agency are scientifically grounded (e.g. based on empirical research) and have been tested and validated for local use (e.g. normed against their own population), they are well-proven to predict the risk of releasing offenders to their community more precisely than relying on a practitioner’s professional judgment alone.”
In pretrial, decisions need to be made about whether to release or detain individuals who have run afoul of the law. The courts weigh the risk a person poses based on static data factors (e.g., criminal charges, criminal history), both in terms of flight risk and the statistical possibility that the person will reoffend, she says. “It is important to note that the risk assessment itself has no binding authority; it presents one piece of data that a judge can use to make an evidence-based decision but it is typically just one factor considered during the process.”
The same is true with incarcerated offenders that get sentenced to time in jail, she says, risk tools—in this case, a Classification decision tree—help guide decisions about housing and programming within the facility by pinpointing risk to both inmate and facility safety. In addition to the space and cost concerns related to incarceration, risk assessment’s effect on corrections is two-fold, Kelderhouse points out. Agencies rely on the risk outputs to help identify where to focus their rehabilitation efforts and their programming dollars. “Assessing and mitigating risk in corrections, especially when we zero in on the correctional side of corrections—that is, correcting criminal behavior—is the foundational piece of evidence-based practices in the field.”
Parole and probation risk tools examine more factors than a pretrial risk assessment, and are usually accompanied by a needs assessment used to identify a person’s strengths and weaknesses, she continues. “Assessing needs along with risk helps an agency to pinpoint the best route to rehabilitation by targeting underlying issues that contribute to criminal behavior.” If the decision is made to release an offender to community supervision, it becomes even more critical that risk and needs assessment data be used as the basis for supervision planning and case management to ensure that the right intervention occurs at the right time for the right reasons. “When deciding whether to release an offender on parole, additional considerations come into play because that person is now reentering society after serving time in a regimented facility and may require specialized services to facilitate and support this transition.”
Risk assessments are designed to gauge an individual’s risk quotient, but should be used to achieve one common goal, emphasizes James Lant, product & solutions manager, Public Safety Division, Multi-Health Systems Inc. (MHS): “Target treatment and supervision needs that will improve the offender’s likelihood of becoming a successful and functioning member of society. Risk assessments are not designed to measure guilt or innocence,” he asserts. “The severity of the crime and evidence against the individual should be used to determine sentencing.” Some risk assessments by design are suited for this purpose, he says. “For example, the Level of Service tools consist of predominately dynamic factor items. Dynamic factors are behaviors or attitudes that can change over time and are, therefore, treatable.”
Risk assessment tools such as the Level of Service instruments are designed to help triage offenders and target areas of risk and need that can help prevent recidivism, Lant explains. The Level of Service Case Management Inventory also includes mechanisms that help correctional staff monitor the progress of an offender throughout their sentence. “Some risk assessment tools are designed to serve specific populations or predict recidivism risk for a particular type of crime. The Static-99R, for example, is a 10-item tool designed to assess risk among male sex offenders.” Other tools, such as the Level of Service (e.g., LSI-R, LS/CMI, and YLS/CMI) family of assessments, have many items and are designed to assess risk of general recidivism across various demographic groups.
Lant emphasizes that before a risk assessment is released and used in real life situations it needs to go through rigorous testing to determine that it is reliable and valid for all populations it is designed to serve. If bias is identified during development of the tool, this should be corrected before it is released, he says in reference to the recent racial bias headlines. “There should also be a degree of transparency of the tool’s scoring algorithm. It is crucial that anyone impacted by an algorithm’s decision is provided with an explanation of how that decision was formulated. Multi-Health Systems Inc., for example, believes in qualified disclosure of their algorithms.”
Arnold Ventures’ Public Safety Assessment (PSA) developed for pretrial does not rely on the factors that many have worried might be discriminatory, says David Hebert, communications manager, such as ethnic background, income, level of education, employment status, neighborhood, or any demographic or personal information other than age. “Arnold Ventures has evaluated the tool’s performance and has found it to be race neutral.” It’s important to note, he stresses, “that in many jurisdictions that don’t use risk assessment, the status quo is that many poor—and often minority—defendants spend long periods in jail, even though they are low risk.”
Equivant’s Kelderhouse adds, “The issue of racial disparity that has received attention in the field in recent years, refers to the overrepresentation of minorities within the justice system. This is not a new issue in our country; it has existed for decades. The assessments work to prevent bias directly by using only objective data points. Regardless, the industry and academic community alike are investing in additional research related to bias in criminal justice overall.”
To sum up, she reiterates that risk assessments are purposed to generate a score that is derived and used to determine a recommended risk level. The assessments are not intended to replace the professional practitioner/decision-maker, nor are they used without intensive training and ongoing continuing education. “An assessment shouldn’t be viewed as the final, prescriptive solution—and the role that our criminal justice practitioners play in their daily work should not be diminished in any way. Assessments provide an excellent unbiased and objective decision recommendation, but they are meant to be used by professionals, not to apply a machine generated label.”