Broward County
BSO Pretrial Program (PRP)
Ordinance
INDEX
INTRODUCTION Page 3
THE HISTORIC ROOTS OF THE Page 4
PRETRIAL ORDINIANCE
THE JAIL AND JUSTICE Page 5
SYSTEM ASSESSMENT
THE ASSESSMENTS Page 6
COMMENTS
PRETRIAL SERVICES PROGRAM Page 7
EXPANSION
DEVELOPMENT OF THE Page 7
ORDINANCE
PASSAGE OF THE ORDINANCE Page 8
JANUARY 27, 2009
ARTICLE VII: BROWARD COUNTY Page 11
PRETRIAL RELEASE POLICY
Introduction
Broward County’s Pretrial Release Ordinance is revolutionary. For the first time since its inception three decades ago, the pretrial program has procedures in place to gauge how effective it is in safeguarding the public, ensuring that the accused make court appearances and saving money. The ordinance ends the confusion on what agency is responsible for the accused during different phases of a criminal case.
The ordinance creates these historic guidelines while totally preserving judicial discretion and control over all aspects of a case. Carefully drafted to take into account the historic right of the accused to the presumption of innocence, the ordinance is ground breaking legislation.
The Historic Roots of the Pretrial Ordinance
In the shifting ideas concerning criminal justice, one concept has remained fixed in Anglo-Saxon law for over 1,000 years – the right of an individual to remain free while awaiting trial. This concept remains in the Broward County Pretrial Ordinance.
To guarantee an individual appear in court, bail was established. In 1275 the English Parliament passed a law which set bailable and non-bailable offenses. A similar list of non-bailable offenses – stipulating violent criminals who threaten the community are not eligible for bail or release – is cataloged today in Florida law and in the Broward County Pretrial Ordinance.
In the mid-1970s, Broward County was facing a crisis of jail overcrowding. It was caused by the exploding growth of South Florida, changing societal standards, the escalading use of illegal drugs and the failure of the county commission to build new jails fast enough.
The Broward County Commission, the Broward Sheriff and the county’s director of corrections were sued in federal court over the deteriorating conditions in the county’s jail system. The lawsuit – Carruthers v Cochran, No. 76-CIV-WMH – alleged multiple constitutional violations. Federal District Judge William M. Hoeveler established caps on the jails’ inmate population and minimum conditions.
Just after the county was sued in 1977, the Pretrial Services Office was created. It was designed to relieve jail overcrowding by allowing indigent individuals who could not afford bail the chance for release prior to trial.
The Seventeenth Judicial Circuit Chief Judge Miette Burnstein reiterated in administrative order III-88-C-1 issued November, 1988 that pretrial release was for any individual “arrested and incarcerated upon charges not greater than second degree felonies who does not post bond.”
Judge Burnstein’s order set rules establishing how pretrial release should operate. Determining an arrestee’s eligibility for release should be “guided in substantial part by the factors listed in Rules 3.15 (c) and 3.131 (b), Florida Rules of Criminal Procedures,” she ordered.
If the pre-trial program considers an individual meeting the criteria for release, the program shall file written recommendations with the chief judge or the duty magistrate “accompanied by a written undertaking executed by the accused in which he agrees, if released, to (a) report to the office of the (the sheriff’s community detention) bureau directly upon release; (b) work out a plan of supervision with the bureau; and (c) abide by said plan, the court order of release and all rules and regulations promulgated by the Bureau,” her order continued.
Any person who is arrested for failing to comply with their plan of supervision “shall not thereafter be considered for further participation in the Program,” she wrote.
In 1996, then-Broward Sheriff Ron Cochran gave up control of the pretrial program, contending it was not part of the Broward Sheriff’s Office’s core mission. The county commission operated pretrial release for the next four years.
In 2000, then-Broward Sheriff Ken Jenne took over the pretrial release program as part of a huge expansion of the sheriff’s department. At the time of the takeover, there were about 500 people enrolled. By the 2007-2008 fiscal year, the BSO-run program had swelled to handle 5,785 inmates.
The Jail and Justice System Assessment,
Conducted February 13-16, 2007 for the Broward Sheriff’s Office
In February 2007, Sheriff Jenne, with the support of the county’s Public Safety Coordinating Council, had a study conducted of Broward County’s jail and justice system. The aim was to find ways to manage the inmate population and reduce the need for new jail construction. The study was done with the help of the National Institute of Corrections, but a disclaimer on the first page states that it reflects the views of the three researchers connected with the pretrial release community and not the views or policies of the federal agency.
The researchers spent three days in Broward, setting up scheduling, meeting with individuals and groups that are involved with criminal justice, reviewing criminal justice policies and procedures, working with staff to collect data and presenting preliminary findings to county officials.
Among the findings:
- Approximately 72 percent of the jail population is awaiting trial.
- 975 defendants were detained on bonds of $5,000 or less, including 381 on $1,000 or less. This indicated a fault in the pretrial system, since bonds this low almost always meant defendants were being held on relatively minor charges and were seldom a threat to the community.
- Probation instituted a zero tolerance policy following “an isolated incident which occurred in 2004 in Deltona, Florida.” The “tolerance for the risk of pretrial failure is (also) low.”
The “isolated incident,” which was mentioned in the report but not detailed, is notorious in the Florida criminal justice community — probation agents lost track of an individual, who took part in six murders.
- 19 percent of the jail population was charged with felony violations of probation, including 8.2 percent which the report calls “technical violations.”
- The judges should allow for “reprimand hearings” in lieu of arrest for some probation violations. The violations which would qualify for hearings were not detailed.
- The average length of stay in Broward’s jails jumped 17 percent from 2002 to 2006 – from 27 to 32 days — even though the number of defendants and criminal cases remained relatively flat.
- Data is available, but no one is charged with the responsibility to collect and present the data in a manner which will enhance policy development. The Broward County Pretrial Ordinance solved this problem by requiring the program to gather data and present it regularly in writing.
- Pretrial Services should investigate all defendants and provide a pretrial investigation whenever feasible at the defendants’ first appearance in court if consideration of bail is likely to occur. The report should include the local, state and national criminal history, an objective assessment of risk of failure to appear, the danger to the community and recommendations of terms and conditions of bail. This recommendation was made part of the Broward County Pretrial Ordinance.
The assessment contains caveats stipulating that it is only a cursory look at the Broward justice system and does not present the full picture.
There is a warning that the “data were prepared in some hast” due to the time constraints (pg. 9). For instance, the researchers didn’t find out that “the State Attorney’s Office supports an extensive prosecutorial diversion process for non-violent offenders” until after visiting Broward (pg. 21).
The assessment specifically stated that “while we recognize that judicial workload has an effect on a court’s ability to process criminal cases. . . the workload issues are beyond the scope of this report” (pg. 22).
The Assessment’s Comments:
Bail And Pretrial Services
The assessment reinforces that pretrial services programs “are the primary mechanisms for providing information to judicial officers to assist with the bail decisions and monitoring and supervision of pretrial defendants released pending trial” (pg. 25).
Three publications which provide “detailed guidance related to pretrial investigation and pretrial supervision are cited”:
- American Bar Association Standards For Criminal Justice, Standards On Pretrial Release, Third Edition (2002)
- National District Attorney’s Association, National Prosecution Standards, Second Edition (1991) pp. 138-150.
- The National Association of Pretrial Services Agencies, Standards on Pretrial Release, Third Edition (2004).
The standards for pretrial investigations were outlined in the assessment:
- There should be an interview with the defendant.
- Specified information should be verified.
- A local, state and national criminal history should be obtained.
- An “objective assessment” of the risk of failure appear and danger to the community should be conducted.
The assessment states that at the time (early 2007) Broward County did not “currently utilize an objective assessment of risk or make recommendations for terms and conditions of bail on a regular basis.”
The authors “highly recommended” that “an objective risk assessment instrument” be established in Broward (pg. 26). They also recommend the “re-engineering the pretrial state of the criminal justice system (pg. 35)” to improve efficiency.
The Broward County Pre-Trial Ordinance enacted in January incorporated these recommendations.
Pretrial Services Program Expansion
On January 15, 2008, Broward County Commissioners approved a $2.7 million expansion of the Pretrial Services Program run by the Broward Sheriff’s Office. The money was earmarked for 25.5 new positions and expanded electronic monitoring of defendants. The goal was to delay construction of a new 1,000-bed jail.
Commissioners, however, stipulated that methods be developed to evaluate the effectiveness of the program. They directed the staff to prepare an ordinance creating policies which would govern the pretrial services. The ordinance would include strict reporting requirements which would enable commissioners to judge whether the program was fulfilling its objectives.
Development of the Ordinance
Data was gathered by staff which indicated a need to reign in the rising costs of the Broward pretrial program. The per-inmate cost of pretrial was far above the averages for other urban counties in the state:
Participants Cost Per Participant (07-08)
- Broward 5,785 $794.02
- Dade 11,101 $434.75
- Orange 6,619 $282.33
- Pinellas 5,918 $248.10
- Palm Beach 7,657 $188.18
- Duval 3,945 $141.21
- Hillsborough 701 $57.06
Broward commissioners were appalled at the costs.
Statistics from the pretrial services indicated there were problems in the system. The agency’s own report indicated that 28 percent of the defendants were having “unsuccessful completions” of the pretrial program (Report of the Pretrial Services Division, April 17, 2008).
The same report shown county staff indicated that 36 percent of those on pretrial release were facing charges for serious crimes, including 333 domestic violence cases, 27 for sexual activity with a child and 13 for murder. A power point presentation to commissioners in January 2009 just prior to enactment of the Broward County Pre-Trial Ordinance indicated the percentage of those accused of a serious crime released to the program had increased to 39 percent.
At the same time, approximately 1,000 inmates in the Broward jails were being held on bonds less than $1,000 for relatively minor crimes indicating a serious problem with the pretrial program’s assessment policies.
Testimony was presented to commissioners that a woman with no prior record had been in jail for six months on charges of possession of drug paraphernalia. She was being held on $1,000 bond, but was never given the option of being in the pretrial release program.
Meanwhile, another individual who was charged with sexual violence on a minor was released through the pretrial program.
Commissioners were alarmed. The data and testimony bolstered their view that an ordinance governing the program was needed.
Passage of the Ordinance,
January 27, 2009
The passage of the ordinance took place after workshops over several months.
At the public hearing on January 27, two versions of the proposed ordinance were presented – one from the bail bonds industry and another from the county staff.
The eventual ordinance ended up an amalgam of both positions.
The pretrial officials and their handful of supporters argued against any ordinance.
They claimed that the program operated under state laws, which superseded anything the county could develop and made the enactment of any county ordinance unnecessary.
Those back a new ordinance included the Broward Sheriff’s Office, which oversees the program’s operations.
Despite the vehement opposition of the pretrial officials who work under him, Broward Sheriff’s Office Colonel James Wimberly, who runs the department of Detention, told commissioners he backed the ordinance.
“We support the ordinance as it’s written,” Wimberly said.
The State Attorney’s Office took no position.
Supporters of the new ordinance, which included the surety bail bonds industry, cited a Florida Appeals Court decision which supported the county commission’s authority to enact a pretrial ordinance. The opinion in Valdez v. Chief Judge of the Eleventh Circuit of Florida 640 So.2d 1164 (Fla. 3d. DCA 1994) includes the statement that “there appears to be no impediment to the executive branch of the county government to establish the minimum criteria and parameters for eligibility before accepting persons into its program for non-financial custody release.”
Commissioners and their staff agreed the court decision gave them the legal right to pass a pretrial ordinance.
County Attorney Jeffrey Newton stated at the January 27, 2009 public hearing on the ordinance: “We do not believe it’s in conflict with state law, nor unconstitutional. . . we believe it complies with state law, and also that it is, in fact, constitutional.”
County Commissioner Ilene Lieberman, a lawyer, grilled Newton about his opinion.
COMMISSIONER LIEBERMAN: Okay. So with all due respect to the Public Defender, it’s the County Attorney’s opinion — nothing in this ordinance causes you any concern?
MR. NEWTON: Not at all.
COMMISSIONER LIEBERMAN: Nothing in this ordinance is in conflict with state law?
MR. NEWTON: Not at all.
COMMISSIONER LIEBERMAN: Nothing in this ordinance is unconstitutional?
MR. NEWTON: Not at all.
Newton told commissioners that the ordinance mirrored elements of the Citizens Right-To-Know Act, a state law requiring pretrial programs to develop a data base of information about their effectiveness and cost. The state law passed during the 2008 legislative session, just months before the drafting of the ordinance.
Assistant County Administrator Pete Corwin assured the commissioners that the discretion to assign the accused to the pretrial program remains with the judiciary.
“The judge can weigh each individual case and make an individual decision, and not be, you know, weighed down by the ordinance,” Corwin said.
The ordinance passed 7-2, with Commissioners Kristin Jacobs and Lois Wexler casting negative votes.
After the vote, commissioners directed the County Auditor to review the expenditures for the pretrial program. They directed staff to look into imposing fees on non-indigent individuals assigned to the program to help offset the costs.
With the ordinance’s passage, Broward became a pioneer –the first county requiring accountability from a pretrial program. For the first time, an ordinance provided guidelines to determine which individuals qualify for pretrial and the program’s responsibilities. And for the first time, taxpayers could know whether they were both protected and getting their monies’ worth.
ARTICLE VII. BROWARD COUNTY PRETRIAL RELEASE POLICY
Sec. 10-127. Title.
This article shall be known as the “Broward County Pretrial Release Policy.”
(Ord. No. 2009-01, § 1, 1-27-09)
Sec. 10-128. Authority.
This article is enacted pursuant to Broward County’s power to enact ordinances to protect the public health, safety, and general welfare of the residents of Broward County, Article VIII, Subsection 1(g), Florida Constitution, and Subsection 125.01(1)(w) Florida Statutes, as may be amended from time to time.
(Ord. No. 2009-01, § 1, 1-27-09)
Sec. 10-129. Intent and declaration of policy.
(a) Intent.
It is the intent of this policy that individuals who are charged with serious criminal offenses that pose a threat to the safety of the community or the integrity of the judicial process, or those individuals deemed to be a risk of not appearing at trial, be detained upon arrest. Individuals not posing such a threat and not deemed a nonappearance risk, who meet specified criteria and who would otherwise not qualify for monetary release on bond or release on their own recognizance, may be recommended for release by the Pretrial Release Services Program (the “Program”) under certain conditions until criminal proceedings against them are concluded and adjudication has been determined. This policy is intended to ensure the detention of individuals who pose a threat to the community, while also providing fair and equal access to pretrial release. Additionally, these measures should ensure that individuals appear for court and also reduce jail crowding.
(b) Declaration of Policy.
(1) The Program is County-funded and operated by the Broward Sheriff’s Office to provide judges with an alternative to pretrial detention, release on an individual’s own recognizance (ROR), and monetary release on bond.
(2) The Program is to place public safety first and use its best efforts to ensure that individuals accepted into the Program appear at all court proceedings until final disposition of the case.
(3) Section 907.041, Florida Statutes, as may be amended from time to time, and Rule 3.131 of the Florida Rules of Criminal Procedure specify factors to be considered for pretrial detention and nonmonetary release of individuals arrested for criminal offenses, and these factors are set forth below in Subsection 10-130(a)(2). There is a statutory presumption in favor of nonmonetary release for individuals granted pretrial release.
(4) A case in the Program is successfully completed when it is closed with no non-compliances that result in revocation from the Program, no failures to appear that result in revocation from the Program, and no re-arrests that result in revocation from the Program.
(5) The definition of non-compliance is a failure to comply with an order of monitoring or supervision that results in a revocation from the Program. The definition of failure to appear is missing or non-appearance at any court date.
(Ord. No. 2009-01, § 1, 1-27-09)
Sec. 10-130. Program criteria: preservation of discretion and program requirements.
(a) Program Criteria.
(1) The release of individuals eligible for the Program is solely in the discretion of the judiciary.
(2) The method of monitoring and supervision by the Program shall be put in writing, signed and acknowledged by the individual released to the Program, and made a part of the court file.
(3) No individual shall be recommended for release by the Program unless the Program certifies to the court that it has investigated or otherwise verified the following factors:
a. That the current charges pending against the individual are a municipal ordinance violation, a misdemeanor, or a felony;
b. The individual’s name and address;
c. The individual’s financial resources, such as the ability to afford bond or a declaration of indigence signed by the individual and made a part of the court file;
d. The mental health status of the individual;
e. The individual’s past and present conduct, including any record of criminal convictions, failure to appear at prior court proceedings, and flight to avoid prosecution;
f. That the individual is not already released from custody on a monetary bond, released to the Program pending resolution of another criminal proceeding, or is on probation, parole, or other release pending completion of a jail or prison sentence;
g. Whether the individual has community ties, including present employment, length of time in the community, and family ties;
h. Any facts justifying a concern that an individual will fail to attend court or pose a threat to the community; and
i. That the Program has provided to the individual a document which describes the different forms of release, including, but not limited to, pretrial release and possible conditions and costs and fees associated with it, monetary release such as bail bonds and cash bonds, and release on the individual’s own recognizance.
(4) Individuals charged with dangerous crimes as defined in Subsection 907.041(4)(a), Florida Statutes, as may be amended from time to time, are not eligible for release to the Program at First Appearance, as that term is defined in Rules 3.130 and 3.131 of the Florida Rules of Criminal Procedure, unless the court exercises its discretion and determines otherwise consistent with Florida Statutes.
(5) At First Appearance, individuals who are not indigent should be recommended for release to the Program only if a bail bond is issued, unless the court exercises its discretion and determines otherwise. The determination of indigent status shall be consistent with Section 27.52, Florida Statutes, and Florida Rules of Criminal Procedure, 3.111.
(6) After First Appearance, individuals charged with dangerous crimes should be recommended for release to the Program only if a bail bond is issued, unless the court exercises its discretion and determines otherwise.
(7) If an individual, who is eligible for the Program, has not been released to the Program within three days after First Appearance, that individual shall thereafter be eligible for release to the Program.
(8) When the Program conducts interviews of individuals after First Appearance, it will give high priority to individuals charged with misdemeanors and those individuals who are indigent.
(9) While released to the Program, if the court determines that any individual has been found to be in substantial and willful violation of the terms and conditions established by the court, fails to comply with the conditions of the Program, or is convicted of criminal activity of any kind, the Program shall promptly inform the court. If pretrial release is revoked by the court, the individual will not be permitted future re-entry to the Program for a period of five years.
(10) Any individual who has knowingly and willfully failed to appear within the past calendar year on any case other than a civil traffic infraction should not be recommended or accepted for release to the Program, unless the court exercises its discretion and determines otherwise.
(11) Individuals are eligible for acceptance into the Program only once per calendar year, unless the individual swears to his/her indigence under oath or only if a bail bond is issued.
(b) Preservation of Discretion.
(1) Nothing in this Ordinance shall restrict the court’s discretion to order an individual released into the Program and to determine the conditions of pretrial release in accordance with the Florida Statutes and the Florida Rules of Criminal Procedure. If the court releases an individual to the Program who does not meet the criteria, the Program shall record the reasons for doing so.
(2) Nothing in this Ordinance shall restrict how the Program monitors or supervises the individuals released to the Program.
(c) Program Requirement.
(1) The Program will prepare a report displaying information that is relevant to the individuals released to the Program. A copy of the report will be filed at the Office of the Clerk of the Court and be readily accessible to the public. The report must be updated weekly and display accurate data on the following information:
a. The name, location, and funding source of the Program.
b. The number of individuals assessed and interviewed.
c. The number of indigent individuals assessed and interviewed.
d. The names and number of individuals accepted into the Program, including a breakdown of individuals released to regular supervision, electronic monitoring, and GPS electronic monitoring, including the individual’s name, case number(s), and charge(s).
e. The names and number of indigent individuals accepted into the Program.
f. The charges filed against and the case numbers of individuals accepted into the Program.
g. The nature of any prior criminal conviction of an individual accepted into the Program.
h. The court appearances required of an individual accepted into the Program.
i. The date of each individual’s failure to appear for a scheduled court appearance.
j. The number of warrants, if any, which have been issued for an individual’s arrest for failing to appear at a scheduled court appearance.
k. The number and type of program non-compliance infractions committed by an individual in the Program and whether the Program recommended that the court revoke the individual’s release.
l. The total number of individuals released to the Program by the magistrate judge and post magistrate judge, including the individual’s name, case number(s), and charge(s).
m. The total number of false alarms reported by the electronic monitoring station and GPS monitoring and the total number of minutes per month each bracelet or the system is not communicating with the monitoring station.
(2) The Program shall, no later than March 31st of every year, submit an annual report for the previous calendar year to the Board of County Commissioners, the Clerk of Court, and the Public Safety Coordinating Council. The report will be made readily available to the public. The annual report must contain at a minimum:
a. The name, location, and all funding sources of the Program.
b. The operating and capital budget of the Program.
c. The percentage of the Program’s budget supported by public funds.
d. The amount of fees paid by individuals to the Program.
e. The number of persons employed by the Program.
f. The number of individuals assessed and interviewed for the Program.
g. The number of individuals recommended for the Program.
h. The number of individuals for whom the Program recommended against non-secured release.
i. The number of individuals granted non-secured release after the Program recommended non-secured release.
j. The number of individuals assessed and interviewed for non-secured release, who were declared indigent by the court.
k. The name and case number of each person granted non-secured release who:
1. Failed to attend a scheduled court appearance;
2. Was issued a warrant for failing to appear;
3. Was arrested for any offense while on release through the Program;
l. Any additional information necessary to assess the performance of and cost efficiency of the Program.
(Ord. No. 2009-01, § 1, 1-27-09)
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