New pretrial system scales back cash bail, increases monitoring

District Court Judge Kirsten Swanson presides over her first case in December 2016. Swanson and other Alaska judges started using new pretrial risk scores this month. (Photo by Matt Miller/KTOO)

Alaska’s criminal justice system is scaling back the use of cash bail for many awaiting trials.

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And the state has created an entirely new Pretrial Enforcement Division. Sixty officers are responsible for monitoring defendants’ compliance with their conditions of release.

Judge Kirsten Swanson presided over a routine hearing Tuesday in Juneau District Court. She said many of the same things she would say before Jan. 1.

But there was a moment that revealed a new wrinkle, when public defender Deborah Macaulay asked Swanson what Macaulay’s “score” was.

The score is supposed to indicate how likely Macaulay’s client is to face new criminal arrests if she’s released before her trial.

It’s a 10-point scale. Macaulay’s client had a score of 5, which means low risk.

Under the new system, most people with low scores will be released without needing to pay cash bail.

Whether a defendant stays in jail will depend less on how much money they have.

Macaulay asked for no cash bail for her client, but Swanson disagreed. She set bail at $1,000, all cash, because of the level of the charge.

Then Swanson told the defendant to stay out of trouble if she posted bail.

“You need to keep in contact with your attorney,” Swanson said. “Don’t violate any laws. And you need to keep in contact with the pretrial enforcement division officer.”

That officer is another new feature of the system that went into effect Jan. 1.

Before, defendants out on bail were monitored by third parties, like family members, which could be unfair to people with no one to turn to.

Now, pretrial officers check to see if defendants are complying with the conditions of their release.

State Pretrial Enforcement Division Director Jeri Fox described how that works on Talk of Alaska on Tuesday.

“We have officers going to homes, knocking on doors, and making sure that if someone, for example, has a no-alcohol condition, that they don’t come and answer the door with a beer in their hand,” she said. “And if they do, they’ll be going to jail.”

And they could help connect defendants with services like alcohol or drug treatment to reduce the risk of new offenses.

Susanne DiPietro worked with the Alaska Criminal Justice Commission, which recommended the new pretrial system.

“In the past there has not been a systematic way to monitor high-risk individuals, or higher-risk individuals, who may have been able to pay bail and be released before the disposition of their case,” she said. “This is expected to be a pretty important public safety benefit.”

The new system is expected to reduce the number of people in jail, although state officials don’t have an estimate.

Stanford University assistant professor Sharad Goel has studied similar pretrial systems in other states. He said the sets of rules – or algorithms – used to determine the risk scores have a strong track record.

“An algorithm is almost always going to beat the human at saying, ‘What is the likelihood that this person will show up at their trial date if released? What is the likelihood that this person will commit a violent crime if released?’” he said. “Then there are always the hard questions of, ‘Well, what do you do? What does it mean to be high risk? If someone has a 10 percent chance of not showing up at the trial, does that mean that they’re high risk? Does that mean that you detain them?’”

Alaska’s risk score for new criminal arrests is based on six pieces of information drawn from public records, including the total number of arrests in the past five years. Goel said it’s good that Alaska’s system is simple, but he said the system risks reinforcing racial bias.

“If you’re a minority and you engage in drug use, you’re more likely to be arrested than if you’re white,” he said.

State officials said they studied the effect of risk scores on different racial groups. They concluded it wouldn’t hurt minorities.

Fox also said it’s a tool that’s open to improvement.

“What we’ve got to do in the future is to re-validate that and to make sure that indeed we are not seeing disparities between race or gender in how the tool actually performs,” she said.

Officials emphasize that they’ll review the system in six months to make sure it’s working the way it’s supposed to.

KTOO’s Matt Miller contributed to this report.