– Great, so I think we’re gonna go ahead and get started. – Is that …? – So welcome, everyone. I’m Marin Levy, and
along with Neil Siegel, I am the director of our program in public law here at Duke. And it’s so nice to see
so many of you all here. We are honored today to have such a distinguished
panel of chief justices, judges and court administrators to discuss an incredibly important and timely set of topics: courts’ fees, fines and bail. So we have Mary McQueen,
who is the president of the National Center for State Courts, and David Levi, our own
beloved former dean, now the director of our
Bolch Judicial Institute, moderating a panel
discussion for you all today. David, I will hand it off to you. – Thank you, Professor Levy. So we have a great
group of people up here. Really, from my point of view, the heroes of our judicial system, the leaders of our state courts, which is where so much of the action is right now. Justice Scott Bales has just left being the chief justice
of the state of Arizona. He’s going to become
the director of IAALS, which is a law reform institute at the University of Denver. And sitting next to him is Chief Justice Judith Nakamura from New Mexico. And seated right next
to me is Mary McQueen, who you just heard about. She is president of the National Center for State Courts and one of our leading law reformers in the system. And seated next to me is Martin Hoshino, who is the administrative director of the California Judicial Council, which is a very big job. It’s a gigantic court system. It dwarfs every other court system. Seated next to him is Judge Douglas Beach, who had the honor of being the judge who ultimately was in charge of what you may recognize as one of the hot spots in America, Ferguson, Missouri. And he has a very interesting story to tell about that. And seated next to him is our beloved former Chief Justice, Mark Martin, now the dean at Regent, right? Did I say that? School of Law in Virginia Beach, which is probably being
pummeled right now, but we hope not. Anyway, Mark is going to race back
there and blow back at the wind. And then on the phone, I believe, is Stuart Rabner, who is the chief justice of the state of New Jersey. And probably no one more responsible for bail reform in New Jersey than Chief Justice Rabner. Are you there, Stuart? – [Stuart] I am, thank you. – Oh, gosh, you’re
coming in loud and clear. – The voice of God.
(panelists laugh) – Really. Yeah, you have a kind of authority in your disembodied state mere mortals don’t actually have. So actually, while you’re coming in so loud and clear, maybe we could just start with you. And so we have been meeting all today, and we began last night, to talk among ourselves, judges and scholars, about this vexatious problem of fees, fines and bail, excessive bail, undue fees and fines, and the ways in which these sometimes well-intentioned impositions have such negative effects, particularly on poor people, devastating effects, and it creates what we’ve been calling
the destitution pipeline. So in law school, you study cases and doctrine primarily. What we are studying is the way court systems actually operate. And this is a very
data-intensive kind of inquiry. Of course, there are a huge number or normative, very
important normative issues that drive this. So Stuart,
why don’t we start with you? How do you see the problem? What have you been doing? In round one, let’s try to keep it to three minutes, if we can. – [Stuart] Sure, and
what I would say to you about the volume problem, just do what my kids do at home: Turn down the volume. That way, you don’t have to listen to me. (David laughs)
I see this done with success on a regular basis. We have the same dichotomy. We look at cases. We address them, we do our best to study the record and figure out the right answer in a particular case. And then we get involved in initiatives, like bail reform and
municipal court reform, where we’re trying to improve the quality of justice in the state. And that’s what we’ve done there. With the time limit,
I’ll just speak briefly about the bail reform effort that’s been going on for now six years. So I won’t get that far in three minutes, and that’s okay, but what we saw, which so many other
states have seen, as well, is too many poor
defendants sitting in jail for weeks or months on end because they couldn’t afford to make
even modest amounts of bail. And these were not individuals who presented a risk of danger or flight, the reasons that pretrial
release decisions are being made. And then others who did
present those levels of risk could get out
because the Constitution guaranteed a right to bail,
and if they had money, they were able to be released. So we set out, after a study was done that showed how bad the
problem was in our state. It’s easy sometimes to lose sight if you’re looking at
what’s happening elsewhere, but if it’s in your own backyard, and 12% of the pretrial jail population is there because they can’t post relatively small amounts of bail, you know there’s a problem. And we created a large committee with stakeholders from across
the spectrum, advocates, practitioners, judges, prosecutors, defense counsel, the ACLU and others to work together and
come up with suggestions about moving to a risk-based system, where people would be
released and monitored, and those who presented the highest level of risk could be detained. And it ended up being adopted as law, and the voters approved the
constitutional amendment. And for the past two
years, we’ve been working with the system to try to ensure that our system of justice overall is a better and a fairer one. And what we’re seeing is very, very little use
of monetary bail anymore. It’s still part of our statute. One in a thousand cases, on average, is bail-imposed. And instead, most of our defendants are being released–well over
a majority, closer to about 75, 80% if you look just at
those who’ve been arrested, and an even higher
percentage if you’re looking at the whole universe, are released with no conditions or some conditions, and the highest risk are being detained. And we’ve closely monitored the data. People are still showing up in court with the supervision, with the reminders. People are not committing crimes at a rate that is significantly higher than what had been going on before. We’ve got a lot of work
to do in this area, with respect to domestic violence and tweaking the risk assessment tool and continuing to hear criticism from community groups, but it’s been a worthwhile journey so
far, and an important one. Thank you. – Thank you. Scott, from your Arizona perspective. – Well, I’m pleased to be
here at Duke Law School. And before I turn to
the Arizona perspective, I just want to put this
in a broader context. Any day in the United States, about 2.2 million people are incarcerated. Another 4.4 million people are under some kind of penal supervision, probation, parole, community supervision. And those facts relate to fines, fees and bail because fines, fees and bail not only contribute to cycles of poverty, they can contribute to
cycles of criminalization. Of the 2.2 million people incarcerated, about 750,000 are in jails, and something like 1/2 of them are people that haven’t yet been convicted. They’re awaiting the
disposition of their charges. And we know from studies in Arizona and from national studies,
if you unnecessarily hold a person in jail, even for a day, it increases the likelihood
that they’re going to commit a crime once
they’re ultimately released. So if you care about fairness, if you care about public safety, if you care about saving public money, you want to reduce the
unnecessary incarceration of people, and that’s tied
in to fines, fees and bail. So what we’ve done in
Arizona, through a series of rulemaking, administrative orders and some legislative
changes, is we’ve directed the judges in making the determination whether a person will be detained or not, pending the disposition of their case, to identify the least onerous conditions that are consistent with
ensuring their appearance and preserving public safety, and requiring that they not impose bail unless there’s no effective alternative. So the challenge that
we’re facing in Arizona is having adopted those changes in terms of the rules,
changing the culture among judges who, for a long time, had relied on things like bond schedules. And when a person appeared before them for their initial appearance,
they would simply look and it’d be like going to a restaurant. And the menu said that for this offense of disturbing the peace,
the price was $200 if you wanna get out of
jail, and you’d languish if you couldn’t come up with it. But it’s very important that
we implement that change. As I said, if you care about fairness, if you care about public safety, if you care about saving public money, we shouldn’t be holding
people unnecessarily in jail just because they can’t
come up with a bond. – Thank you. New Mexico followed New Jersey, although I’m not speaking with
the voice of authority today. (panelists laugh) But in addition to what Justice Bales said about folks getting
outta jail and committing a new crime, they’re losing their jobs every day they sit in jail,
employers aren’t waiting. And we found, also, that folks who went into jail without a drug problem came out with one. Their first experience was happening because we all know
there’s a proliferation of, there’s so many drugs in jail. So what we did, as well, is in New Mexico, our Constitution required
that everyone be bailable. And the judges were interpreting that to mean, great, now you’re dangerous. I’m going to set a million dollar bond. Go bail yourself out. Because our Constitution didn’t allow dangerous people to be held without bond. So in 2016, 87% of our voters approved a judge’s ability to hold the truly dangerous in
jail, and we’re using a risk assessment tool to determine who those folks are, and everyone else has a right to bond. And what happened, a right to bail, and no one any longer in New Mexico can be held in jail because of their financial inability to pay to get out. If you’re truly a danger,
you’re being held. If you’re a flight risk, bail can be set. And what ended up
happening, and judges have to articulate in writing why they’re setting bail for someone. The presumption is release
on your own recognizance now in New Mexico. So we went from 33% of our jail population was being held on bond prior to the constitutional amendment. That has now dropped to 4.2%. And those folks are, that 4.2%, we’re looking individually now at who are those people. I believe it’s going to prove to be the truly homeless, the people that you could put a dollar and they’re not gonna be able to show up. So the detention rate has dropped. Crime, this is what’s really interesting because everyone was
worried, all these people are getting out now on ROR. In fact, crime has been plummeting in our jurisdictions. Now that we’re using
risk assessment tools, we’re able to hold the truly dangerous and release the poor
back into the communities before they need to appear in court. – Thank you. Martin. – Thank you. I’m gonna give
you the California experience, but it might not be all that different from all other states. And in three minutes,
I’m gonna try and unpack and give you the short version of a 30-year history. So in California, we
set up a funding system for any myriad of two to 300 programs, state and local levels,
that are being funded off of the fine, fee and
assessment surcharge, forfeiture system, whatever
you want to call it. This is a phenomena that occurred over the course of those 20, 30 years. It starts with, at least in this subject, in the ’90s or so, there was a set of base fines for every
infraction that occurred. Then after that, there’s a series of what we refer to as add-ons, and those were all of the fines and fees that I suggested
to you previously. These get piled on over the course of time such that you now have a revenue system that is generating about $2 billion a year in the system. This is instead of the traditional methods that you fund government services, which is usually in the form of an array of taxes and other kinds of assessments that people are used to. Now over the course of time, then, at the same time we were
collecting this money, in a 10-year period and window in time, we can now see, after all
these well-intentioned retailed add-ons to fund brain injury, to fund medical support,
to fund DNA identification, you now have a debt problem in California, where 10 years ago, it was $5 billion of what we called
uncollectible delinquent debt, and is now $10 billion. So you’re still generating two billion, but you’ve got a problem where the amount of debt is rising. Now why is that happening? It’s because we’ve crossed the threshold of really what’s affordable, potentially, for the residents or the people who are caught in this particular
machinery and cycle. Now the challenge is how do you go about unwinding all of that at this time? And that’s kind of how it works. You get a traffic ticket. I’ll illustrate it
because this could be you or someone you know or
someone you know know that this happens to. You get a traffic ticket. Let’s say it’s speeding. The base fine in 1990 is set at $35. When it arrives in your home, it’s $238. Running a red light, $35. And then it arrives in
your mailbox, it’s $490. It’s because of all of the add-ons. Now you have to appear in court. If you fail to appear in court, we then add on a $300 civil assessment. You miss it again, we add
another $300 civil assessment. Then you miss it again,
and then here comes a bench warrant for your arrest. And then during that arrest, other things potentially happen, and that’s how it becomes the destitution pipeline, even though it started as
this macro public policy on how it is you’ll actually
fund government services. So in California, our attempt has been do a number of things, which is, one, we’ve done two amnesty programs in an attempt to forgive
debt, but more importantly, put people on payment plans. And if you go on these payment plans, we restore your driver’s license. Because driver’s license
suspension becomes another part of that,
which is another part of bad public policy because we know Americans generally drive to work. The ability to work is
the ability to get paid in order to pay off my fine and my fee and my infraction. So I think you can see the point. The other thing we’re doing in California is right now working on ability to pay. Because this built up, and making it part of the decision, it built up over those 20, 30 years one piece of law, one piece of legislation at a time, it’s hard to unwind that
in a wholesale fashion because you’re going to try and solve a $2 billion revenue problem. And so our attempt is
to bring ability to pay as a part of the judicial decision making, where we can right size now what is actually affordable for folks with the amount that they actually owe. So if you owe $500, but we determine that you can only pay $250, that becomes the amount. If it needs to be a payment plan, put you on the payment plan. It is our best attempt at this stage in order to deal with the
proportionality problem and restore fairness in a system that didn’t intend to end up in this wholesale manner, but that
has, in fact, happened, while we hope one day we will get to a bigger discussion about how will you actually address the
tax revenue structures for government services. Basically that it was formed in the 1950s, and how will you make that work for a 21st-century economy? And so I know that’s a
high-level piece of it, but this is how it gets down to the ground and how it actually results in a pipeline to destitution. – So a lot of this issue came to light when there was rioting in Ferguson, Missouri. And the Department of
Justice issued a report that essentially the courts had lost the confidence of the minority community because it was viewed as a tax collector, and as a very unfair one. You’ve been dealing with this, Doug. – So I was lucky enough to be elected as the presiding judge
for St. Louis County on a Wednesday, and on Friday, the Supreme Court
decided that I would now, all presiding judges, would be responsible for the municipal
divisions, which are part of the court system in your circuit. I had 89 cities to be added, including one of those was Ferguson. So it’s an administrative issue because these courts, as well intended as they may have been,
had never been supervised. They ran pretty much themselves. We found that the clerks ran most of the courts ’cause the judges for those kinds of courts,
at least in Missouri, which, well, I’ll call
limited jurisdiction courts, they’re called different
things around the country, they were only part time. They came in three or four
hours and did a docket. So everything that you’ve just heard is very true, and in a
little bit higher level than my experience had been, which was boots on the ground. I was supposed to go in there and I’m supposed to implement some of these changes,
which were required. In fact, we came up with the Supreme Court with minimum operating standards, which were really not new. They were just codified in a way so we could see where they were. And then I was trying to get each judge to run their court like that. And most of the time, the judges said, “Well, you need to ask the clerk. “I have no idea what you’re
talking about there.” And in Ferguson, there
literally is an email that the Justice Department
has where the mayor said to the chief of police, “Our revenues are down.” Now we’re talking 2008,
2009, when we’re having a downturn in the economy, “Can you write tickets
and get us up by 10%?” and his responses, in writing, was, “I think we can do better than that.” Well, that, of course, applies to the court system. And the court and the judge, who I’d known personally for years,
I was surprised to hear the kind of dollars and
cents that were attached. There’s one city that’s
right next to Ferguson, they have just over 2,000 people. And in 2014, they brought in $2.2 million on traffic tickets. So that’s like everybody
getting five tickets in town in order to get it done. And then you wouldn’t just get one ticket. The police department, in conjunction with everybody else, would
write you six tickets. When you got pulled over,
you didn’t just get one. And don’t say anything
back to the police officer because then you’re gonna get arrested. And then what happened, and when you start having fines that people couldn’t pay, when you have a $500 fine and you make $1,347 a month in gross pay in Missouri is the minimum wage,
$500 is not gonna happen. So what would they do? Well, they didn’t come to court. And when they failed to appear in court, then the judge would issue a warrant for their arrest initially. It was no, hey, did you miss
your court date? Did ya forget? We didn’t send text messages reminding you at that time. You got another failure to appear, that would be $300. And then one of the other
things that we were having, in terms of minimum operating standards, was there wasn’t a judge. The judge, if arrested,
it’s only the judge can let you out or set bond or determine whether you’re gonna stay. Well, if the judge only worked on Tuesdays and you got picked up on Thursday, you stayed until next Tuesday. Well, that, as you heard earlier, one day in jail is bad enough. When you have a week in jail for no reason because you violated a traffic ticket and you can’t pay, or you
didn’t show up in court, we did not address those things. We are addressing them now. It is a cultural change. Since England in the
1200s, we’ve been dealing with dollars and cents as a way to bring the public into following the law. And somewhere we may have
gotten lost with that, but the guy who was a
professional football player, $500 to him is different
than to somebody else. The statistics is not exactly right, but about four out of seven people in the country could not come up with, they don’t have $500 of expendable income for a sudden thing like a $500 bail. So that just kind of could snowball. Because I was dealing with 70% of the citizens in this country, their experience in the judicial system is in these small courts. And so those, then, led to, that goes on your record. You have a failure to appear. And now you get picked up for something in the state court. In the state court, you
can’t get out of jail because you have a warrant for your arrest for failure to appear in some small municipality. So we had, in Missouri,
and in St. Louis County in particular, we had 62%
over a seven-year period of the people that were
confined in our jail were there for, they were there for pretrial confinement or a probation violation. And we set up a committee to look at why are these people, anybody held for more than a hundred days. It was, time after time after time, their bond, and maybe
it’s set at a thousand, was now down to 200. They cannot raise $200 to get out of jail. They’re only there because they couldn’t come up with that money. In one situation, our
judges started saying, “Well, you can get out
with an ankle bracelet,” but we didn’t have any
money, so we’d let them out. Condition was you had to go
over and get an ankle bracelet. That was $300. You violated your condition of release, so you go back to jail. And so there was this
cycle that just continues because they can’t get out of that cycle. So it’s a very large problem, it’s a very large effort. There’s a lot of good
things being sent at it, but when you get right down to it, what I have found in my 89 courts that I was responsible for, it’s the judge and the culture that
that judge establishes as to following the rules of the law and taking into consideration
somebody’s ability to pay. If you have 200 people
on your docket tonight, and you started at six, if you wanna get home before midnight, you’re not gonna be
spending a lot of time. Lastly, we found what
are alternative ways? You know, community service,
doing something else. We have been offering community service. We cannot order it. We offer it. Very seldom does anyone wanna take. “Judge, I think I can pay that fine. “Can I pay that fine over time?” Well, there today may be $20 a month, but next week, they may not have that job, two months later they may not. And we need, then, to
follow back up with it and say, “What is your ability to pay?” These are efforts which
are ongoing in every state. Ferguson was the heart of that. Not only was I put in charge of that, I was the lucky judge. We have a judge on duty 24 hours a day that was on duty when the riots occurred. So I had firsthand accounts
of what really happened and how it affected people that night in their real lives. And it’s a very telling, but very meaningful thing, when you start seeing people whose lives
are unraveled for doing silly little things and they just get caught up in the cycle. – Mark. – Good afternoon. Delighted to be with
you, and also thank you for spending your lunch
with us on this panel. In North Carolina, I wanna kind of break this down
into good news and bad news. So the good news is North Carolina has what’s called a uniform court system. So that means when a
fine or a fee is imposed, that the proceeds go right to the general fund for the state. So you don’t have the
same perverse incentives that can arise in a Ferguson situation or a municipal court
system where oftentimes fines and fees were used
for employee bonuses or new furniture or what the case may be at that local courthouse. So that’s a good thing. Secondly, over the last few years, we were very successful in moving forward with juvenile justice reform. And so 16 and 17 year olds are no longer automatically tried in adult court for 97% of the type of offenses that teenage defendants were confronting. And so that was a huge progressive reform for us in the state. And last but not least, we’ve also made great progress on expunction reform. I don’t think it’s a mystery to anybody in here that the overwhelming majority of criminal defendants that
have active confinement will be released. And so rehabilitation always has to be a part of the equation. Because if not, you’re releasing someone, and the chief justice alluded to earlier, who may just have simply learned new skills in prison that are really not the type of skills that we were hoping that they would learn, addiction to drugs, a young offender interacting with a more senior offender who has had a lot of experience committing crimes. So in order to bring people back on the street in an era of online pervasive background
checks, you have to have a mechanism for breaking that cycle and allowing defendants
to fully participate in the marketplace again. So what’s the bad news? Well, this state is ground zero for major problems with fines and fees, and we have to acknowledge that. One of the problems,
and I’ll zero right in on driver’s license revocations, we have 1.2 million citizens who do not currently have a valid license. It’s either in a state of suspension or revocation for failure to comply with court obligations
or failure to appear. And I want you to think about that. One out of seven North Carolinians unable to legally drive a car. So what happens? Well, more often than not, they have to drive a car, right? You’ve got to get to work. We don’t have readily
available mass transit across the state. Matter of fact, we don’t have readily available mass transit in many parts of the state, right? So you have to have the ability to get to work to be
able to support yourself, at least if the goal is to keep you in the legitimate side of
the marketplace, correct? So all too often, we are forcing drivers to operate cars illegally,
or if they follow the law, they lose their job, or even worse, engage in criminality. So we need to look at several areas to make the system work better for people who find themselves generally in the criminal justice system for a relatively minor matter. This could be something as
basic as speeding, right? Parking in the wrong place. And the aggregation of
penalties, as Martin shared, where somebody does not seasonably respond to the financial penalty
and it grows over time because of certain ways in which the system is operated. So in closing, we generally
have a system here in North Carolina where you have a failure to not pay, where there
will be a notification sent to DMV and a mandatory revocation without any opportunity for the driver to contest that in a judicial forum. So two reforms that are
very much needed here, number one is an
individualized determination of ability to pay when you’re
still in criminal court for an infraction, misdemeanor. And then secondly, instead
of an automatic revocation, where DMV just sends you a letter and says your license has been revoked, we rewrite that letter. And it says you’re in default. You have an opportunity to appear and explain why you’re in default. And then consider a number of options. Are they able to pay? Will installments work? And work in a practical way to make sure that we’re not punishing people when they are utterly incapable of paying. – So I wouldn’t have asked you this last year when you were
still chief justice, but most of what we’re talking about is the product of state legislation, and it’s the legislature that is the ultimate authority here. What’s it like working
with the state legislature on these problem when I’m sure you said the same things to many of them that you’ve just said here today, and yet here we are? – Well, first let me admit my failure. In 2016,
(Mary laughs) I made a public plea that we would have more individualized discretion by our trial judges to
waive or remit penalties. Instead, the opposite happened, and Martin alluded to it. In California, you have 1.5
to $2 billion in revenue. Well, you have stakeholders
who rely on the revenue. And the same here. So you have, you don’t really want to call government actors a
vested interest, right? But you do have people that are typically used to having that revenue. So we’ve kind of gone in
the wrong direction on this. And I think we need a fundamental reexamination, which I can freely ask for now that I’m no longer chief justice, to what is the goal here? In other words, if the
goal is to make sure we don’t have debtors’ prisons, right? I mean, the last time I checked, that was supposed to be unlawful since the founding of the country. But yet we see shades of gray, how it’s crept back in. Because the reality is the inability to post bond, if you don’t have that individualized
assessment, it could be akin to denial of bond, in a practical way. And so what I would tell the legislatures is the same data metrics that we did on juvenile justice reform and also on expunction reform. And that is that reforming the fines and fees process, number one, is going to remove a lot of
unnecessary clerk entries. Think about how many entries are made by clerks of court around the state and all the paperwork, and we know in advance that none of
it will ever be collected. It’s just form over substance. So that’s point one. Point two, as I indicated this morning during our discussions, we really need to come up with economic
impact information so we can go to the
general assembly and say, “Look, we’re not talking about “being easy on people who “aren’t driving well.” I mean, we can have safe driving training. We can use GPS technology to make sure that a driver is just
driving to work and back, and not the bar every day. And third, we can use other forms of community service in lieu
of financial obligations to really meet critical
needs in the community, and in a situation where we know the money’s not gonna be collected anyway. So I think that’s the approach that I would use with the general assembly. – So I think for a lot of you, state courts may be an unexplainable animal, but about 97% of all cases in this country are filed in the state courts. So as you go through your law studies, just kind of keep that in mind. But state courts are not like, and the chief justices,
although they are the chief judicial officer within the state, it doesn’t work like a pyramid, like you’re Microsoft and you can tell everyone what to do. I like to define it as a constellation where you have all these brilliant stars that occasionally align into patterns, but not at all like a pyramid. So I wanted the chief justices to comment because within the
three-branch government system that we work, and Dean Martin has talked somewhat about legislature and how we can, but within the judicial branch, what can we do, as far
as judicial education? And I’ll give you an example. The Conference of Chief
Justices just finished, well, not really finished. Tina Vagenas here is the chief counsel for the Conference of Chief Justices Taskforce on Fines and Fees. And one of the things they looked at was when you have a traffic ticket and come to court, or
you don’t come to court and you’re charged with failure to appear, that’s a misdemeanor, if, in fact, the traffic offense
has been decriminalized in some states, and that
can carry jail time, right? So everybody knows about Gideon and your right to
counsel if you can’t pay. And so a big issue became about when do you have to tell defendants that they have a right to counsel? Do we have to put in on the
back of the traffic ticket? Because when you show up in court to say that you can’t pay, or on a failure to appear, the first time you’re advised that you
have a right to counsel is when you’re in the courtroom. So believe it or not, there are a lot of part time and there are still a lot of non-attorney judges in this country that have no understanding of Gideon or Bearden or any of the
cases that come along. So I was gonna ask the chiefs to give us some examples of what we can do or what is being done within the judicial system to bring those trial court judges that see these cases every day, how do we make sure that they embrace those recommendations? – Judicial education, judicial education, judicial education. In New Mexico, judicial education is funded by fees (panelists laugh) on tickets. And by the way, about 1/2 of our judges are non-lawyer judges. Not all of them under the state system, 1/2 of them are in the municipalities. And although the Supreme
Court’s responsible for their discipline, that’s about it. They’re paid for, they’re funded, they’re operated day to day by the local municipality. So if you get stopped for a traffic ticket in New Mexico, you get three bucks added on to help fund judicial education. Well, traffic tickets
dropped pretty significantly in part because our
biggest police department was under DOJ investigation. Policemen started getting afraid of stopping people, and traffic tickets over the last eight, 10 years or so has just really declined. So our judicial education budget for the whole state,
including the municipal judges who we are responsible for educating, was about $1.5 million. And over the past several years, it’s dropped to about $800,000. So rather than going in the direction of educating more about
this destitution pipeline, we’ve been cutting back
on judicial education until we did go to the
legislature last year and got down on our knees and begged. And they’re starting to
supplement that fund now with some general fund money. But we need to educate
our judges that people who do not pay, it’s not an
affront to their authority. That there are other factors, such as poverty, that’s
driving inability to pay. And so to me, I do agree, one of the most important things we can do is educate our judges, but not on a fee-based system. – And Mary, I’m gonna divert a little bit from the way you posed the question because I think the educational role for state courts, particularly
for supreme courts, goes beyond just the judicial branch. I think in those states where you’ve seen successful reforms, it’s often in part been a consequence of leadership within the courts, but leadership
that helped enlist the support of the legislature and the executive branches. Because if you explain to people, look, the way this process can work is someone can get cited for a traffic violation. They fail to show up. Their license is suspended. They then get stopped for driving with a suspended license. And in some states, that could result in their arrest on the spot and the impoundment of their vehicle. So you’ve just created basically a self-perpetuating cycle of poverty, if not criminalization, that many people can’t get out of because by that point,
the fines have mounted to a level that are unpayable. It’s easy to make the
case to other branches of government that that kind of process just makes no sense at all. And you just have to explain that whether your priorities are public safety, fiscal responsibility, basic fairness, you need to change the system. Oliver Wendell Holmes once said, “The law is civilized only to the extent “that it’s conscious of what it’s doing.” And with respect to fines, fees and bail, for decades we weren’t
really paying attention to what we were doing. And I think it’s critical that courts be part of that education process, but not just with respect to judges. – Can I ask Martin just
one quick question? So a lot of times what
the Judicial Council in California does is develop tools for judges or for the
courts to use in this. And so one of the things that has been utilized, and
I know that California was leading this, income calculators. And so you might talk about rather than there just being a flat fee that everybody pays the same thing, maybe we should be looking at
proportionality in some way. – Yeah, thanks, Mary. I flew over it very quickly in my earlier three minutes, but that is the project that’s underway. We’re kinda working with
your National Center and others on it, hoping
to scale it statewide and make it available to others, but it does attempt to
restore proportionality. Right now, in the early stage, we generally are allowing folks to self-certify what their levels are, but we are asking them, really, just to take pictures of the
public benefit assistance that they’re getting and the like while we build the income calculator from the other databases that you would start to link to. There’s the Department of Social Services. We can get information that we see we’re modeling off of the expansion of healthcare in America. So there are ways to get there because the key is not only does it have to be fair and proportional, it has to be operational. Because of the volume
that we are talking about, if we are asking judicial officers to do this, they have to have a tool and a calculator that is rapid, valid and that is reliable so that they can have confidence in it. Because part of getting to the individualized assessment is when you go and do these things, you can’t create really more time for a system that is really always out of time and the volume that has to get processed. So we’re in the early stages of just allowing people to do basic ways to prove up where they are, and it’s mostly based on whether or not you’re on public assistance, what your benefits are, while we build out the infrastructure to link things together to have something that’s a little bit more robust and a little
bit more reliable. We’re not gonna let the perfect be the enemy of the good. – So Stuart, you had
such tremendous success in New Jersey in radically changing the bail law, and I’m wondering if you could talk about how you
worked with the legislature. And also, I believe you were funded in large part by a private foundation, and I think that’s interesting, as well. – [Stuart] So we brought the legislature and the governor’s office
into the conversation right at the beginning. And we’ve done this with
all of the important public policy-type committees we’ve had, whether it’s foreclosure or mental health or municipal court. We had legislative
leaders or their key aides as members of the committee, and the same for the governor’s office. And what that did, following up on your earlier comments, is it
helped educate people from the start and created allies who, in turn, wanted to go out and sponsor some of this and seek to advance the issue. We broadened the conversation, which helped us with the legislature and with other groups. For example, you had some people who cared passionately
that no drug kingpins should be allowed out, even if they had access to 1/2 a million dollars, because they might intimidate witnesses. We had people who cared passionately that poor people not sit in jail for all the reasons we’ve talked about. And then you had government officials and others, county administrators, who said, “Why are we
spending $100 a night “for weeks on end for somebody “who can’t make $200 bail?” And it was by broadening the conversation that we were able to make advances and propose a package of recommendations. I also have to say we got lucky. We had a governor who cared
strongly about detention. We had legislators who cared passionately about other issues. And they thought of our forum, the court, as sort of a neutral place where we could work together, and it didn’t have some of the, perhaps, competitive aspects that might otherwise have existed. And we overwhelmed them with information on a regular basis about the data and the results to educate and to teach, as so many have stressed is critical. And the same for our judges, they want to do the right thing. It helps to give them the tools. – Thank you. Why don’t we open it up? Who has a question for anybody here? Yes? – It seems like (hard to hear) really focused on risk to their community, and not so much on the risk of the person who is going to be incarcerated. It seems like some of you were alluding to those
risks as part quantifiable. So are you seeing any of these systems start to account for that or start to build that maybe into a dashboard kind of thing? Or is that something that (speaks too low to hear)? – I’ve only seen it when you have a showing of potential mental health issues with the person coming into the system. We have an approach here that when you are admitted to a jail, I mean, there is a doctor that comes in and makes, sometimes
it’s somewhat cursory, but at least an examination to make sure that the defendant is
not a threat to themself. I think you make a really good point. Now what we’ve done, pretty good at, I think, across the board is trying to separate youthful offenders the best we can (unclear) recidivist, but with very much an imperfect way. I mean, if you’re a young offender and you commit a violent crime, it won’t be too long
before you’re probably housed with others who have committed that crime, so it would be in a cohort of older defendants, typically, that have done a lot of horrific crimes. But at least here, I’m not aware that that’s been. Of course, we’re at the embryonic stage, and we have several local justice systems that are beta testing these systems, but it has not been adopted statewide. – I would say that the biggest change that’s taken place, I think, in the legal and the court system
over the last 50 years is moving from concentrating on cases to concentrating on people, and actually using kind
of a triage approach when somebody comes into the court system. So there’s a lot of attempts to look at ability to pay, to look
at some of those issues about the individual, not just about the severity of the crime that was committed. Those are taken into factor. So I think some of these
risk assessment tools are being used for that, for judges. I’ll give an example. Somebody will come in and say, “Well, I really can’t pay.” And somebody will look and say, “Well, where’d you get
those Nike tennis shoes?” That’s no okay. Justice really is supposed to be blind to those types of issues. And so I don’t know if that gets to it directly, but yes, there are efforts in almost every state to look more at the individuals. That’s why you see this emphasis on drug courts or problem-solving courts or veterans courts and
mental health courts, is because we’ve learned over time that this is about people. It’s not just about cases and how many cases did we dispose of or how fast did we dispose of them. So I would say that’s been one of the biggest changes that I’ve seen, and it is based on
looking at the individual. – Well, and I think you raise a good point in that the assessment tools
that have been developed, they’re focusing on the
risk that the defendant either does not appear or commits another, or is arrested for another crime on release. But the tools, and it’s
a carefully chosen word, tool, they don’t answer the question whether a person is held or not. That’s still a decision for the judge. And it gets to the last
point that I wanna make, and that is it makes it
all the more important that those individuals
have access to counsel who can advocate on their behalf and explain why, perhaps for reasons not reflected in the tool, there isn’t really a risk that they’ll fail to show up because, in fact, they have a job, they have a family, they have support in the community. So that’s the way that we’ve effectively are getting at those
personal side characteristics of the defendant that might complement the information that comes from the tool, but it puts a premium on their having effective representation. – Can I just add, embedded in the tool, it’s not just low, medium and high. That’s the derivative outcome. Behind that is information about your criminogenic needs, your past, your background or your
mental health issues. Do you have housing? Are you employed? Is there anger management issues? It depends on the type of tool, but some of them will go that far, that deep, and it becomes important to a judicial officer
because if they’re gonna make a decision on
release, whether it’s OR or whether it’s some
conditions or supervision or monitoring, they might tie drug treatment to it, they might tie other aspects to it. So some of that’s behind that, and it’s available to the officer if they choose to dig for it. I hope that answers your question. – But as we go in that direction, towards more individualization, the other part of that
is if you’re the judge making the decision and you don’t have services to provide this person, they have mental health issues, they have drug issues or they’re homeless, and you’re prepared to let them out on their personal recognizance or where there’s minor requirements, but you know you’re letting this person back out into a world in which they can’t functioned, perhaps,
when they get there. And so unless the social services and the rest of the government is bringing the services together, then the judge. I’ve had conversations. I’m keeping him here to protect him. He has nowhere to go. He’s not gonna necessarily commit another crime and he doesn’t quite fit our criteria for harming himself. So you begin to get all kinds of issues which go with doing the correct thing that’s gonna help that society and that individual when they go back out into the get out of a jail situation or out on bond. What do you do when your parents say, “I’m done with him. “I’m not coming to pick him up, “I’m not going to give you $100 for him, “you can keep him for
as long as you want,” and you know they go out onto the street. – There’s another question. – Yeah? – There’s a young woman. – [Man] So one of my
questions is in regards to this focus on the individual, rather than on a broader spectrum. With risk assessments, you have the danger of highlighting certain statistical biases against local economics or against people of
different races that might be overrepresented
within the prison system. How do you overcome that? And are you at a risk– – Judicial discretion. – [Man] While trying to ameliorate the issue actually create a larger problem using these tools? – Do you want to answer? Well, sage judicial
discretion has to be used as part of that. The tool can’t make the decision alone. It’s just to provide
additional information. It’s not the final decision. – It’s a great question,
and it’s one to ask. And I think the systems are all struggling with it right now, with risk assessment tools, because one of the central elements
is prior convictions or prior arrests. And if you believe that the system, the criminal justice
system, is already embedded in its institutionalized levels of racism, then that’s how it gets
derivative into the tool. But being able to know
that and to say that, and back to education and training, making sure the judicial
officers are aware of both the strengths of the tools, but also all the limitations that you just asked about, about those tools, need to be in front of
the judicial officer and the judge when they’re making their decision related to that. And at the same time, as a system embarks on this, I know in California, we were setting up the data sets. Is it that black males come out high risk more often than white
males on the same charge, and where and why? And if you go into it,
you can actually test and plumb for the thesis, and again, make adjustments as you go forward. But there’s a healthy debate, that’s probably the best way to put it, a very robust and a raucous debate going on in criminal
justice and the court system about risk assessment tools,
based on your question. – Well, and it’s important to recognize that there’s not just one risk
assessment tool out there. Some have been, I think,
appropriately criticized for explicitly building
in socioeconomic factors and, in some instances, gender and race. Others do not, others keep that out. Another thing, though, to keep in mind is any time you’re gonna have preventative detention, that is, any time you’re gonna hold people pending the disposition of their charges, you’re gonna have some
kind of risk assessment. It might be a judge looking at somebody and sizing up whether they think they’re gonna behave themselves if they’re released or not. What a risk assessment tool does, if it’s done properly, is it gives you a tool that is gonna be uniform, is gonna be potentially validated, will be transparent if you’re very open about what the factors are and how the calculations are made. And it gives you the opportunity of being fairer in those respects by tamping down the opportunities for an individual decision maker to exercise biases, where
implicit or explicit. But you’re right, those are fair concerns that we to be conscious about as we’re both developing the tools and assessing how
they’re actually working. – Stuart, do you want to address this? – [Stuart] So I didn’t hear the question. If you could just summarize it for me. I agree with a lot of the answers, and I would like to add. (panelists laugh) – The question is whether these risk assessment tools incorporate biases. – [Stuart] That’s kind of what I thought. It’s something that we need to continue to watch closely, and we do. And I’ll tell you that
just look at the numbers that I’ll share with
you from our experience these two years. The jail population in our state is now down to, pretrial population, down more than 40%, 6,000 individuals. 3,000 black, 1,500 white, 1,500 Hispanic. So you can look at that two ways. One is, wow, what’s the overall mix? Why are so many diverse individuals in custody to begin with? And I think that’s a fair question that goes beyond the judiciary and beyond risk assessment tools, and you need to examine all the actors. Judges are responding to cases that are brought into the system, and I think all of us need to together discuss the impact of race on the decision-making
process at different stages. But then if you look at it in terms of the effect of judges’ decisions that are now aided by risk assessment tools, the large majority of the advances have been for people of color. So we need to keep looking at it, but there is, I would suggest, under that second lens, some good news to examine, as well. – Here’s one– – Okay, we can have one
more, right there, yeah. – [Woman] So I just joined (the Duke immigration) clinic, and I spent three years
litigating FOIA requests on the Department of Homeland Security risk assessment system. We’re about to publish those results. They basically show the
risk assessment tool was manipulated in 2016 to take anybody who entered the country after January 2014 and call
them high threat risk, which had nothing to do with, it’s nothing to do with
actual, like, factors. And I’m curious, based on
all of your conversation and the particular concerns about how these risk tools are used and how they’re constructed,
what you think the role (speaks too low to hear)? Catch some of these things
and provide light on– – Don’t they (mumbles)? – No. So ours is transparent. And that’s one of the reasons we use. – Okay, so the question
is the transparency of the risk assessment tool. In a context where some of the companies that developed these tools consider that the– mechanics of it are proprietary. Who wants to take this? Okay. – Well, and Stuart can add to this, as well, because New Jersey, Arizona, Kentucky, several other jurisdictions use a risk assessment
tool, called the PSA, that was developed by
the Arnold Foundation that one of, I think, the key virtues is its transparency. They’re quite open about
how they’ve identified the factors that are considered. They’re open to continual reevaluation. There are, as Dean Levi
said, there are some proprietary entities out there that have developed risk assessment tools, and it’s kind of a black box. And I would be very wary, as a court leader, of wanting to adopt that kind of system. I think that’s kind of antithetical to the way courts should work. – [Stuart] I wanna add to
what Scott said, and I agree. The Arnold Foundation tool that we use has nine factors. Go on our website,
they’re all listed there. Every defendant in each of the tens of thousands of cases gets a PSA report that identifies the factors and identifies how they scored on them. It was important to us, and we’ve maintained the transparency that the Arnold Foundation has encouraged. – So we have a hard stop at 1:30, which is unfortunate, but
what a wonderful panel. Thank you so much for being here with us. (audience applauding)