Pretrial Services: Virginia’s Boondoggle

(Last Updated On: February 2, 2020)

Virginia Criminal JusticeFor anyone cynical about government programs taking a functioning system, making it worse, then as a solution to the problems it caused propose more of what made it worse, knowing how Virginia’s pretrial services agency functions will only validate that cynicism.

Pretrial Services has existed in Virginia for over 20 years. In 2016, a study was authorized by the Virginia State Crime Commission (VSCC) for a review of pretrial services. The Crime Commission requested pretrial services examine various aspects of the agency’s responsibilities and performance. The study was completed this past November of 2017 and presented to the Crime Commission in December, 2017. In short, pretrial services:

  1. could provide no evidence to show it has substantive value or benefit to our criminal justice system, and
  2. blamed much of it on the Virginia’s Department of Criminal Justice Services (DCJS), as well as the lack of funding.

Their presentation was broken down into five sections: background, current
status, questions answered, summary of findings, and recommendations. This
article goes through the official presentation presented to Crime Commission last December by pretrial services, pointing out inconsistencies, evasions, and falsehoods, beginning with the “Current Status” section.

Current Status

The current status section describes a brief history of the agency, it’s implementation throughout the state, funding, and what it is doing.

Locality-Based / Voluntary / Funding

The first item of note in the presentation is the clarification that pretrial services agencies are locality-based and voluntary, meaning counties and cities may choose to not participate. There is a caveat to this, which is the locality must set up a pretrial services agency if it receives a state reimbursement for a correctional facility. Rather than characterizing it as voluntary, “highly encouraged” would be a more accurate description.

Regarding the funding, the pretrial services agencies will receive between $10 and $12 million dollars for fiscal year 17-18.

Pretrial Supervision is not Probation?

The big red flag is on page 6 where it states, “Pretrial supervision is not probation. The defendant has not been convicted of a crime and is presumed innocent.”

Guilty Upon ArrestWhile it may not be called probation, it is exactly the same. Often referred to as pretrial probation, pretrial supervision is regarded by many as the most controversial aspect of the agency. Defendants must report to the pretrial officer weekly or bi-weekly, may have to submit to drug or alcohol tests, and may have to attend classes (which they must pay for). GPS and SCRAM bracelets may be issued and can be very costly ($3 to $15 per day). Should defendants miss an appointment or fail any condition of pretrial condition, a warrant is issued and another charge is added to their record, just like probation.

It is not uncommon for the defendant’s original charge to be dismissed or ruled not-guilty, while the defendant is found guilty of violating pretrial conditions. So, the defendant’s remaining charges are completely contrived from pretrial services.

There is a perception that pretrial services was created to keep people in the system. Knowing how the system works and witnessing firsthand the detrimental effects for defendants, it is understandable how that attitude has become pervasive.

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Pretrial Services: Virginia’s Boondoggle

(Last Updated On: February 2, 2020)

Current Status (continued)

The current status section describes a brief history of pretrial services, it’s implementation throughout the state, funding, and what it is doing.

Risk Assessment

Many jurisdictions have implemented pretrial risk assessment instruments (PRAIs) to help gauge defendants’ flight risk and threat to the community. These tools weigh common factors, such as current charges, previous failure to appears, and drug usage, in an attempt to predict failure to appears in court and/or danger to the community.

pretrial services agentFor the past several years, Virginia has been a leader in the development of risk assessment implementation. The Virginia Pretrial Risk Assessment Instrument (VPRAI) has been copied in many jurisdictions across the country.

In 2017, Virginia implemented the VPRAI-R (Virginia Pretrial Risk Assessment Instrument – Revised) along with a supervision tool called Praxis. VPRAI-R weighs responses to questions which generate a risk level score. Praxis is a tool which takes that VPRAI-R risk score, along with the current charge(s), and determines a supervision level.

The assessment of the defendant is based on common factors which are predictive of failure to appears in court or threats to the community. These factors are largely intuitive. Examples include current charges, criminal history, number of failure to appears, etc. VPRAI-R recently modified some of these factors, which, as a bondsman, I found some to be curious. The modifications of note are:

  • “Current charge” was changed to felony drug, theft, or fraud charge
    [ Does this mean all other types of charges, (i.e. assault/violence, weapons, etc) are overlooked? ]
  • “Employment stability” was changed to “unemployed at the time of arrest”
    [ I found this to be very questionable. For example, suppose the defendant was unemployed for 18 months and has been working at a restaurant for one month. That would not be considered stable under any formula. ]
  • Length of residence was removed as a risk factor.
    [ As a matter of common sense, the stability of a defendant’s address is an important factor when evaluating risk. It simply doesn’t make sense to remove it. ]

There are other considerations to risk assessments which are often overlooked, such as:

  1. It is extremely expensive to implement. Defendants have to be interviewed which is resource intensive2,
  2. many jurisdictions rely on tools and data from other jurisdictions, and thus obtain different samples which may prove to be unsound for their specific population3, and
  3. criticisms exist for these programs for fostering discrimination against minorities due to the demographics.

While these risk assessment implementations are often lauded as bringing tremendous improvements to pretrial criminal justice, the results warrant a healthy skepticism. Their supporters continually crow how these tools improve their record in terms of their placements showing up to court or committing crimes during pretrial release. But what are they comparing it to?

At least for pretrial services in Virginia, it is extremely difficult to get any real results or data showing these programs deliver on these claims. As this study clearly shows, pretrial services has no inclination to divulge any substantive data. If that remains the case, then perhaps it’s all just a waste of resources and taxpayer money.

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