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County bail guidelines take shape

By: Jack Zemlicka, [email protected]//July 25, 2011//

County bail guidelines take shape

By: Jack Zemlicka, [email protected]//July 25, 2011//

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Milwaukee County’s court system is trying to add science to bail and monitoring recommendations that traditionally rely on a judge or court commissioner’s experience.

The new pre-trial risk evaluation system, a trial run of which is to start in September, could eliminate some of the subjectivity that can lead to unnecessary supervision, excessive bail or wasteful spending, said John Chisholm, Milwaukee County district attorney.

The universal screening system will be based on 11 questions posed to offenders to help assess risk and determine appropriate bail or monitoring. The system will contribute to, but not determine, the final recommendations.

The system is part of a national movement toward more evidence-based, pre-trial assessments in criminal cases.

Instead of recommending cash bail and keeping a low-risk drug offender in custody, for instance, the new system could call for electronic monitoring and periodic check-ins with a treatment professional, Chisholm said.

“If appropriate,” he said, “you save the money that would be spent keeping this person in custody.”

But some say the current system is working, and they wonder what value a fact-based evaluation will add.

Milwaukee criminal defense lawyer Mike Guerin said he cannot recall an instance of a judge setting exorbitant bail or calling for unnecessary supervision.

“Judicial discretion seems to generally be pretty well-exercised,” said Guerin, of Gimbel, Reilly, Guerin & Brown LLP. “I can’t point to any abuses, and nobody has come up with an empirical basis for doing something about the risk of repeat offenses.”

Still, he said, with county court budgets stretched to their limits, it might be time to try something new.

“We all want to resist trying these new methods,” he said. “But you don’t want to continue taxing the system, so maybe it’s worth a try.”

With limited resources, the courts cannot afford to waste time or money, said Milwaukee Felony Court Judge Rick Sankovitz. The program would not usurp the discretion of judges, prosecutors or court commissioners, he said.

Ideally, Sankovitz said, screening will take place after prosecutors review cases and recommend charges.

“This is an actuarial instrument based on real experience and thousands of cases,” he said. “It’s more than any one prosecutor, defense attorney, commissioner or judge can say they’ve had on a given case.”

Milwaukee County’s budget includes $250,000, plus a $100,000 grant from the State Office of Justice Assistance, for the universal screening test run. The bulk of the money will go toward hiring screeners to ask the questions and check the validity of defendants’ answers, Sankovitz said.

But the program would cost about $1 million annually to operate, said Chief Judge Jeff Kremers, a longtime advocate of universal screening.

Last month, Kremers applied for a federal grant to cover the full cost of screening. Should that fail, he also requested the money in the next Milwaukee County budget.

“The issue is start-up funds,” he said. “If this program works correctly, it should save more than $1 million in jail beds and ultimately pay for itself.”

According to Kremers’ grant application, the county could save $1 million per year through a 15 percent increase in the number of pretrial defendants released or supervised outside of jail.

Yet to be finalized are the risk-classification ranges to determine bail and supervision limits. Those will depend on a defendant’s score on the screening test.

Each screening question has a point total attached, and higher totals theoretically would warrant a higher level of supervision or bail, Sankovitz said.

Questions include whether someone has two or more prior convictions (one point) to whether the person is unemployed (two points).

“It’s a matter of breaking those down,” Sankovitz said, “and determining how many points a person can get and still be in the lowest risk level.”

Tom Reed, first assistant state public defender in Milwaukee, said he expects the screening will take into account many of the same factors as the current system.

“There are some differences in emphasis,” he said. “But it remains to be seen how the practice will change and what impact that will have for clients.”

The screening, though, is not the final word, Chisholm said. It’s just a way to paint a more complete picture.

“I think people might be a little surprised at first,” he said. “But this is about providing more information to the court, not just about the offense, but about who the offender is.”

Jack Zemlicka can be reached at [email protected].

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