Skepticism surrounds pre-trial assessment goals

Listen to this article

The expectation is Milwaukee County judges and court commissioners will forego their discretion 85 percent of the time to follow a new pre-trial risk assessment when setting bail or supervision in criminal cases.

The reality is the jury’s still out on whether judges and attorneys are willing to surrender so much authority.

Paige Styler, an attorney with the State Public Defender Milwaukee Trial Office and a supporter of the new assessment, said she understands the skepticism.

“Nobody feels comfortable with the idea of lawyers and judges not doing their job in the criminal justice system,” she said.

Still, Styler said, the goal of the Evidence-Based Decision Making in Local Criminal Justice Systems Initiative, expected to launch by Jan. 1, is to provide a baseline of research to make more informed bail or treatment decisions, not to eliminate experience-based decisions.

Federal technical support and training grants gave Milwaukee County the ability to research and set up the evidence-based tools, or praxis, to improve how criminal defendants are assessed after arrest.

The system also is designed to reduce the number of people who spend time in jail awaiting trial and increase the likelihood those who post bail or are under supervision will show up for court.

Felony court Judge Michael Guolee said evidence-based risk assessment will establish consistency in a process that typically is subjective. But time will tell, he said, how eager judges are to theoretically exercise full discretion only 15 percent of the time.

“You look at 47 judges who have 47 different ways of doing things,” Guolee said. “I frankly think there should be some consistency so people know what to expect on certain things, without taking away that discretion.”

In his 35 years on the bench, Guolee said, he has made several rotations through the Criminal Division and pre-trial recommendations for the same crimes are rarely the same from one rotation to the next.

“Every time I come back, I ask, “What is the going rate for burglary?’” he said. “Judges don’t want to be out of step and capricious, but there is a difference between capricious and discretionary.”

The evidence-based system is based on six objective categories to assess risk: additional cases filed, prior failure to appear in court, employment history, residence history, arrests while on bond or bail, and substance abuse dependence.

A point value is attached to each category and, depending on the severity of the crime, the defendant is assessed a recommendation ranging from no supervision to cash bail.

It’s hard to predict how often judges and commissioners will comply with the assessment’s recommendations, but 85 percent isn’t unrealistic, said Laura Gramling Perez, presiding court commissioner in Milwaukee County. She said she expects the assessments will be consistent with the discretionary decisions already made by judges and court commissioners.

“I think, typically, we feel some frustration at making bail decisions at such an early point in the proceeding,” Gramling Perez said. “Often, information we’d like to have is not available, and this will give us that and allow us to make smarter decisions.”

If the court struggles to hit the target goal, then the system will be re-evaluated, said Jeff Kremers, Milwaukee County Circuit Court Chief Judge.

The assessment’s recommendations are not requirements, he said, and the incentive for judges to follow those suggestions is because they provide a basis for making a more informed decision.

“Judges and commissioners will still have the discretion to set bail at whatever they want to,” Kremers said, “and lawyers have the discretion to argue for what they feel is an appropriate bail.”

The biggest challenge, Styler said, and what makes attorneys and judges most uncomfortable, is the research behind the assessment has shown middle to higher risk people benefit from supervision instead of confinement.

She said that goes against the grain of how bail and supervision has been set for decades.

“Hopefully, 85 percent of the time the praxis is going to be correct, and we are going to be following it,” she said. “But for those outliers, we should be doing our jobs as lawyers and judges.”