Focusing on Accountability and Harm Reduction in Pretrial Decision Making

What led to Milwaukee County’s decision to examine and improve its pretrial system? What were the concerns you hoped to address?

Prior to his election in November 2006, John Chisholm — now Milwaukee County District Attorney — convened a small group of prosecutors, defense attorneys, pretrial staff, and community-based service providers to discuss how we could achieve better outcomes for people cycling in and out of our criminal justice system on low-level, nonviolent felonies and misdemeanors.

We determined that a first step was to put a system in place to better understand the people coming into the system so as to prevent the cycling we were witnessing. I should note that we were particularly concerned about the disproportionately impacted, such as people of color and the economically disadvantaged.

We agreed to focus on accountability and harm reduction strategies instead of conviction histories and to do what we could to limit the collateral consequences people experience as a result of their involvement with the criminal justice system. We were also motivated by the knowledge that if we did a better job of allowing community-based providers to assist individuals who otherwise would have been charged, we could enhance community safety and preserve our limited and costly criminal justice resources for violent, high-risk offenders. We believed this would allow us to better serve victims as well.

What are some of the pretrial improvements made in Milwaukee County?

We were able to identify funding to institute a system of universal screening for all individuals arrested and booked into the Milwaukee County Jail. Our system of screenings includes the Public Safety Assessment (PSA), Level of Service Inventory Revised – Screener Version (LSIR-SV), and the Brief Jail Mental Health Screen (BJMHS). We also identified funding for specialized prosecutors and paralegal positions to screen cases for our Early Intervention Program (EIP), which has both a diversion and a deferred prosecution agreement (DPA) component. We also instituted an EIP team to work collaboratively with participants. The team includes our specialized prosecutors, a team of state public defenders who specialize in EIP cases, and pretrial services.

How does using the PSA support your system goals?

The PSA informs prosecutorial and judicial decision-making by incorporating an actuarial assessment into our daily determinations about how best to achieve community and victim safety. The combination of the facts and circumstances of the case and the PSA inform our professional judgment about:

— Those who can be released without conditions

— Those who can benefit from pretrial conditions to enhance their ability to return to court and/​or not be rearrested for a crime

— Those eligible for pretrial detention who are most likely to jeopardize victim and community safety

Finally, the PSA helps shift the pretrial release decision away from just the offense the person allegedly committed to the likelihood that the person will succeed while on pretrial release, and what conditions, if any, might help the person succeed. Also, the information provided in the pretrial report, including the PSA scores and a recommended release level, is made available to all parties — prosecution, defense, and the judicial officer — simultaneously. This process emphasizes the important role we each play in providing information relevant to the person about their case, which may not be reflected in the static factors the PSA captures.

What changed in Milwaukee County as a result of the pretrial improvements you made?

We were able to reduce our jail population while seeing significant improvements. Approximately 80 percent of the people arrested and booked into the Milwaukee County Jail are now released — either on their own recognizance or with supervision — with a failure to appear [1] rate of 21 percent [2], a new criminal activity rate of 12.5 percent, and a new violent crime activity rate of 2.46 percent. [3]

These improvements have also resulted in approximately 1,000 people a year receiving a diversion agreement, or a post-charge Deferred Prosecution Agreement, or specialty court placement that emphasizes procedural justice, treatment, and rewards over sanctions. The EIP has also helped us collect over $750,000 in victim restitution over the last 10 years, and an average of 100 hours of community service is performed weekly at nonprofit organizations throughout Milwaukee County. Data from 2013 to 2019 shows that our successful EIP participants would have otherwise served more than 70,000 days in jail and 6,500 days in prison.

What data does your jurisdiction collect to evaluate the impact of your changes? How do you use it?

Milwaukee County created a robust E‑Pretrial database that captures information from universal screening — data about people booked into the Milwaukee County Jail and those placed into our EIP Diversion and Deferred Prosecution Programs. This data allows us to track failure to appear and public safety rates, successful and unsuccessful diversions and deferred prosecution agreements, and demographics. We use the data to assess and revise our policies and procedures around program eligibility, program requirements, and our case management practices. The data is disseminated systemwide several times a year so that all practitioners have information about how our strategies and programs are performing.

Has an examination of racial disparities been a part of your work?

Absolutely. As I mentioned before, this was a key concern of ours. So we also collect and examine data on race, which has created an ongoing conversation about disparities in the criminal justice system. It also led to a decision to close down the courts for a day each year to bring justice system practitioners together for full-day seminars to discuss implicit and explicit bias and procedural justice. We have done this every year now for the past seven years. These efforts provided part of the foundation for Milwaukee County’s 2019 declaration of racism as a public health crisis demanding attention from all sectors of county government.

Editor’s Note: In December 2019, Milwaukee County released a white paper announcing a new framework for advancing its criminal justice system. The paper outlined seven steps towards a new criminal justice model, one of which is addressing racial disparities. The paper notes, ​“Although efforts toward reforming Milwaukee’s criminal justice system seek to alleviate these disparities, and have in fact resulted in both short- and-long-term reductions in our local jail populations, the service of justice requires our continued vigilance in combating racial inequities.”

References: [1] ​“Failure to appear” is defined as any missed court appearance while on release pending case disposition for the current case and a bench warrant or capias for arrest was authorized (issued or stayed). A failure to appear is not counted if there is confirmation that the person was in custody (jail or prison) when the failure to appear occurred. Beginning January 1, 2020, the FTA definition was updated to ​“the FTA will not be counted if: it is confirmed the individual is in custody, the BW was withdrawn or canceled the same day.”[2] Milwaukee County officials are analyzing data to better understand the higher than expected FTA rate, and the factors preventing people from returning to court, so as to develop more effective practices.[3] These data represent a total of all pretrial persons (n=11,883) between January 9, 2018 and December 31, 2019.