One of the most important decisions a judge or court commissioner makes in handling criminal cases is whether the defendant should be kept in jail or released while awaiting an outcome. A person’s constitutional rights and the community’s need for safety need to be weighed.
At an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday, Maxine White, chief judge of the Milwaukee County Circuit Court, summarized the obligation of judges and commissioners when making those decisions: “To do everything possible to get it right.”
“When I started as a judge 25 years ago, the ‘getting it right’ was all in Maxine’s head and Maxine’s gut,” White said. “Since that time, we’ve gotten smarter.”
The tool that is being used now as a key to getting smarter was the focus of the program in the newly-named Lubar Center (previously the Appellate Courtroom) at Eckstein Hall as White, L’85, along with Milwaukee County District Attorney John Chisholm and Wisconsin First Assistant State Defender Tom Reed, described a scoring system that is being used in Milwaukee County and almost 30 other jurisdictions around the United States to better inform decisions on releasing or incarcerating those awaiting outcomes of criminal complaints.
Milwaukee County began using a scoring system in 2012 based on assessing a variety of factors in a defendant’s life. The goal was to use an “evidence-based” measurement of the risk of releasing someone and the likelihood they would show up for further proceedings in their case.
While the system was considered a step forward, the county in 2015 began switching to a different system, called the Public Safety Assessment. Supported by grants from the Laura and John Arnold Foundation, based in Houston, researchers analyzed 1.5 million cases nationwide and concluded that a scoring system, based on analysis of nine factors, could provide good assistance in making decisions on whether to release defendants.
The Arnold Foundation web site summarizes the nine factors: “Whether the current offense is violent; whether the person has a pending charge at the time of arrest; whether the person has a prior misdemeanor conviction; whether the person has a prior felony conviction; whether the person has a prior conviction for a violent crime; the person’s age at the time of arrest; whether the person failed to appear at a pretrial hearing in the last two years; whether the person failed to appear at a pretrial hearing more than two years ago; and whether the person has previously been sentenced to incarceration.”
White told the Law School audience that none of the factors involve a person’s income or race or where a person lives, which reduces concerns that such scoring systems have unintended, built-in biases.
White, Chisholm and Reed emphasized in their comments that the assessment is a tool to help inform judicial decisions, but that judges and commissioners are still are responsible for using their judgment and discretion in making decisions.
White said that since Jan 1, 2017, the assessment has been used in about 3,200 cases in Milwaukee County courts. The judge or commissioner found in 85% of those cases that the recommendation based on the assessment was on track, White said. In the remaining cases, judges generally made decisions that were more restrictive or required more conditions for release than what the assessment indicated.
Chisholm said this is an exciting time for criminal justice systems as more is done to focus on what the system is intended to accomplish in deciding cases and maximizing community safety. Decisions “should be based on what really keeps a community safe and not just what we think,” Chisholm said. He said early results support saying that the assessment tool is working and safety is not being harmed.
Reed compared the system for handling in-take of defendants into the system with a hospital emergency room. Hospitals are good at determining how to respond to patients – which ones need to be admitted, which ones need less extensive treatment, which ones can be referred to a doctor or clinic for help, which ones can go home. The criminal justice system hasn’t been good at this and the new assessment tool is a step forward, he said.
Speaking for judges, White said, “In order to keep the community safe, in order to honor the democracy and the constitutional standards that we are duty bound to follow, we need help.” The assessment system is providing help, the three panelists agreed.