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COVER STORY | Vol. 11, No. 17, May 14, 2009
(Fortunate Felons)

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Fortunate Felons

by Sean Boone

Is Pre-Trial Release Too Broken To Fix?

Norman Redd is a "fortunate" felon.

When a person is arrested in Escambia County, the judge has four options: keep the defendant in jail, set a bond, release on their own recognizance or place them in a county-funded Pre-Trial Release Program. Norman Redd hit the jackpot and got placed into PTR.

The 28-year-old has an extensive criminal history of felony charges that range from violence against a police officer to grand theft auto, which should have disqualified him for PTR, but it didn't.

In August of last year, Redd, who was already on bond for felony charges, was placed into Escambia County's Pre-Trial Release Program after being arrested for driving under the influence (DUI).

Should Redd have been let out of jail under this program for which the county taxpayers pay, not those arrested? Are our judges putting the public at risk by allowing repeat offenders on the streets?

The PTR program costs the county $503,931 to run. Why are the taxpayers paying for what amounts to bonds for persons who have a history of violence and missing court dates?

The Florida Statutes state that persons that commit "dangerous crimes" should not be eligible for pre-trial release. The First Judicial Circuit Court of Florida had an administrative order, 96-061, in place that should have disqualified Redd for PTR because of his previous arrests.

Section 8 of the order-which defines the qualifications for previous defendant records-states that a defendant cannot be placed into the PTR program if they are already out of custody on monetary bond or have previously been arrested for a crime involving violence. Redd has two battery charges just in the past year.

On the surface it might appear the court made an isolated records error, but a deeper look reveals a more serious problem.

THE ORIGINAL GOAL

The PTR program was formed in 1987 under Administrative Order No. 87-16. Its goal is to "reduce jail population by releasing, under supervision, those individuals who, with a high degree of certainty, will return to court at a specified time."

The program is funded by the Board of County Commissioners and is supposedly evaluated monthly by the county administrator, chief judge, administrative judges from both the circuit and county courts and the court administrator.

Florida currently has 29 PTR programs. Only one-Okaloosa-receives state funding. The Escambia County PTR program is under the Community Corrections Division of the Corrections Bureau. Community Corrections supervises Misdemeanor Probation, Community Confinement, Check Restitution, Work Release, Pre-Trial Release, Community Service Work and Court Services. PTR is the only one of these programs that is funded by the General Fund.

Tammy Booker is the Community Corrections Division Manager. Gordon Pike is the Bureau Chief. Pike declined to be interviewed for this article but did agree to respond in writing to our inquiries.

WHO IS EVALUATING DEFENDANTS?

Billy Ray Burns could be considered an all-star of PTR discrepancies.

Burns, who also has an extensive criminal history that includes violence, was placed on PTR twice last year after being arraigned for petit theft. After missing his first hearing on the charge, County Judge Thomas Johnson revoked his PTR but later reinstated it for the rescheduled hearing-which Burns also missed.

Not only did the judge's order break the no-violence clause of the PTR order, but it violated a clause on granting admission into the program to those who have missed court dates.

Judge Johnson knows the order, though.

In his 20 years as an Escambia County judge, he's been involved with the program almost every day and currently recommends roughly half of the defendants he sees into the program.

So why would he let criminals that are a potential threat to society back on the street?

Johnson says it's a matter of trying to balance two problems in today's society.

"A judge in a perfect world would consider the issues such as the offense or the threat to the community," he says. "But a judge today is also aware of a federal mandate of keeping the jail from overcrowding."

Another problem during judicial hearings is lack of information.

"Usually when we set bonds we have some information (on the defendant), but there are a lot of times in which we don't," says Johnson.

The IN could not find any written evidence that any evaluations are being done on the defendants that Judge Johnson and other judges have been recommending for PTR.

In 1999, Judge John Kuder issued an administrative order, 99-64, that required at least 48 hours to transpire before release was possible to provide adequate investigation time for PTR to meet the statutory obligation of providing certification before allowing a person to be accepted into the PTR program.

An IN review of the case files of several of the persons placed in the PTR program who either had committed dangerous crimes or had felony backgrounds found that none of the files contained any record of evaluations by PTR personnel or any written certifications of a defendant's eligibility for PTR. Dangerous crimes include aggravated assault, aggravated battery, child abuse, kidnapping, robbery, burglary, homicide, manslaughter, sexual battery, stalking and aggravated stalking and acts of domestic violence.

A public records request of the Community Corrections Division found that the only form the PTR department had on the program participants was a contact report.

When asked about the possibility that judges may be violating the law by placing people in PTR who had been charged with dangerous crimes, Pike wrote, "I am not in a position to answer this question; this is a question for the Judiciary."

TAXWATCH CONCERNS

Recently Bob Kerrigan and the newly-formed Escambia County Taxpayers' Association began investigating the PTR program after several private bail bondsmen brought forth allegations of discrepancies to their attention.

What they found was a system that was failing the court and the taxpayer. Their investigators found no evidence that PTR staff had investigated the backgrounds of the accused defendants.

Case records reviewed by the group reveal that some arrested for crimes ranging from domestic violence to child negligence are regularly being put in the program, all against circuit statutes.

The researchers discovered that 62 percent of the defendants accepted into program at first appearance were either charged with a dangerous crime as defined by statutes or had a record of a previous failure to appear. Also, 55 percent of the defendants accepted into the program at first appearance either had known felony backgrounds or had completely unknown criminal histories.

According to Pike, the PTR program does not decide the cases, it just maintains them. "When the judge places a defendant on pre-trial, we supervise the case and conditions," writes Pike.

The State Attorney's Office is concerned about the PTR program.

"It recently been brought to our attention that there are some problems with the PTR program," says Greg Marcille, chief assistant state attorney. "Our position is those type of cases (concerning dangerous crimes)  should not be released on PTR."

LOST FEES

Local judges are placing some persons into PTR under certain conditions, such as electronic monitoring and drug testing. Participants must pay an administrative fee to the designated program in which they are assigned. However, PTR collects no administrative fees.

"On or about June 2002, there was an agreement made between the former Sr. Deputy Court Administrator and bail bondsmen that Pre-Trial Release would not assess an administrative fee," Pike writes.

None of the fees for electronic monitoring, breath tests or urinalysis are showing up in the PTR budget to offset the operating costs of the department.

"The defendants that are required to have electronic monitoring are referred to Community Confinement Program, and any fees required are collected and applied to that program," Pike writes. "Pre-Trial Release does not collect any fees."

The Escambia County Taxpayer's Association has some issues with this. The group believes the program is collecting money from defendants who are under no legal obligation to pay  in violation of  Florida Statute 939.06. It is also concerned that participants who have been acquitted or have had their cases discharged should have been refunded any fees that they paid the county as part of the PTR program.

ECTA found several incidents where PTR participants had the charges against them Nolle prossed (not prosecuted) but were rearrested for failing to pay the fees that they owed to the Community Corrections Division.

The ECTA investigation found that at least 270 of the 1,000 PTR enrollees during the period of July 1, 2008 through March 29, 2009 had their cases Nolle prossed, five were acquitted and 15 had their cases dismissed. No refunds were given to any of these people.

"This is a very good example of a needless government program that is being operated in violation of many laws to perpetuate its existence," says Bob Kerrigan, president of ECTA. "In addition, the county faces substantial refunds to all persons who have paid fees for their participation in the program but whose cases have been discharged."

ECTA is also concerned that no record of individual receipt of payments are in the Clerk of Court's office. The funds collected are under the control of the Community Corrections Division and are not listed on the PTR budget.

In 1997, a grand jury report on Community Corrections found financial mismanagement, specifically in the area of revenue controls. The report states, "It is impossible to determine from the records whether all the monies collected are transmitted and deposited"

ECTA worries that this may still be the case.

NO SHOWS, REARRESTS

Another problem with the PTR is that enrollees are not appearing for their trials.

In its report submitted to the Clerk of Courts for the period of July 1, 2008 through March 28, 2009, the Corrections Bureau reported that 38 PTR enrollees missed their trial dates. ECTA says that the actual number of PTR enrollees who failed to appear during the period was 86.

The same report states 25 PTR enrollees were rearrested during the period. However, ECTA's review of the files of each enrollee found that 30 enrollees were rearrested.

"Is this what we're paying  over $500,000 a year for?" Kerrigan asks.

FIXING PTR

Thirteen months ago Justice Concepts Incorporated (JCI) began a $140,000 county-funded court assessment study. In August 2008, the study was expanded for an additional $102,362 to cover Pre-Trial Services and an analysis of the Escambia County Jail.

JCI has focused extensively on revamping the PTR and getting the program in line with Florida statutes. In a March 19, 2009 management letter to County Administrator Bob McLaughlin and Court Administrator Robin Wright, Nancy Insco, principal of JCI, reports that the consultant team has conducted 10 site visits since March 2008.

The company has recommended the reinstatement of the Escambia County Public Safety Coordinating Council, which met last month for the first time in nearly three years.

It drafted a new administrative order for PTR, which Chief Judge Kim Skievaski recently signed, that abolished the 48-hour requirement for a defendant to make his or her first court appearance.

JCI has recommended a restructuring of the Pre-Trial Services and new policies and procedures for better mental evaluation of defendants prior to their appearance before the judge.

The consultants found that the PTR staff needed to be providing increased support to the Court at first appearance and should be conducting interviews of eligible defendants.

JCI questioned the position of the agency to not provide recommendations to the judges, a common practice in other PTR programs. In fact, JCI wrote that it is "common for the State's Attorney, Public Defender and PTR to share information, as well as develop recommendations to the judges."

JCI also made these recommendations:

PTR use an objective, quantifiable instrument to measure risk to the community, as well as risk to appear at future court hearings.

PTR forensic mental health screeners be available for immediate referral and assessment as defendants are being booked.

PTR should re-interview detainees who are not released at first appearance, or released under bonds.

PTR have an office at the Jail for ready access to defendants.

The consultants have recommended a series of new forms to be used by PTR staff: PreTrial Release Assessment, PreTrial Release Rating Report and PreTrial Release Summary. The overall goal has been to bring the PTR program in compliance with recommended best practices advocated by the Pretrial Justice Center in Washington, D.C.

A spokesperson for the group told IN that company policy required employees to speak off the record, but was able to acknowledge that PTR reorganization has been a "detailed process" that will likely continue for several more months.

Bureau Chief Pike writes that the key recommendations are primarily geared toward the courtroom.

"JCI has made recommendations inclusive of providing front end services for defendants who appear before the judge for first appearance," writes Pike.

 "The judges will then have additional information for the defendants who appear before them."

According to the JCI management letter, the next steps "involve closer coordination and information sharing with Assistant State Attorneys and Public Defenders at the earliest possible stage in the criminal justice process.

OPEN THE COUNTY CHECKBOOK

Meanwhile ECTA plans to ask the County whether the PTR is truly meeting its designated purpose.

"Our concern is that over time this program has developed into a funding source, through the collection of fees and services, for the county, with a need to continually recruit participants to continue that funding even though admitting some participants may violate the law," Kerrigan says.

He believes that PTR is a very good example of a needless county program that may be operated in violation of many laws to perpetuate its existence.

The group plans to ask the county attorney for an opinion on whether or not the enrollees who are not convicted should be refunded any fees paid while in the PTR program.

"We could be talking about over a hundred thousand dollars," Kerrigan says.

sean@inweekly.net