Before trial: Lock 'em up or let 'em go?

Judges in Aberdeen, Rapid City and Sioux Falls soon might have better information to help decide whether to lock up or release criminal defendants awaiting trial.

Three South Dakota counties are developing a pilot program to screen and analyze defendants' background as a way to better predict their flight risk and danger to the public.

Judges would receive a pretrial report containing more information than they can typically glean from police reports or asking questions of attorneys in court.

"As a judge, I crave more information. I want to make the best decision possible. If somebody is dangerous or is a danger to flee or not appear in court I want to know," 2nd Judicial Circuit Magistrate Judge John Hinrichs said.

The concept first emerged in New York City in the early 1960s, and it's since been adopted by the federal court system and hundreds of local jurisdictions around the country.

Minnehaha, Brown and Pennington counties are working with the Crime and Justice Institute of Community Resources for Justice in Boston to develop a pilot program in South Dakota.

One factor for the counties' interest is the growing cost of locking up offenders. Recent criminal justice reforms to slow the increase in state prison inmates could increase the amount of time people spend in county jails.

Minnehaha County has little room to spare. Its 400-bed jail already is operating at near capacity in a county that's expected to add 10,000 new residents by 2020.

Jim Seward, the state's general counsel, said it appears only a small percentage of people charged with crimes would see different outcomes, but it could be significant for the counties involved.

"If you can find a monitor and risk assessment to determine who could be released, and determine 25, 30 or 40 percent could be, I imagine counties would want to evaluate that," Seward said.

The state is paying the Criminal Justice Institute $99,000 to provide a year of technical assistance and produce a final report to the state, Seward said.

"We're not trying to create some statewide program. We're just helping these counties study themselves, looking at these best practices to see if there is something they can use," he said.

The institute already is soliciting data from the counties about people in custody, what they are charged with, how long they have been in custody and what are typical bonds, Minnehaha County Sheriff Mike Milstead said.

Milstead wants to see whether South Dakota's 24-7 DUI monitoring program would be a useful component to allow people who might otherwise be incarcerated to be released on lower bonds.

Hinrichs hopes the program suggests ways to improve 24-7.

"A lot of times it is not realistic or practical for people," Hinrichs said. Some who live outside Sioux Falls or whose job hours prohibit might not be able to come to the jail twice a day to be tested.

"Is there a program that allows people to be tested randomly at their homes or workplaces without having to make them drive dozens of miles to test twice a day or leave work early or bring their children to the jail?" he asked.

A key question yet to be answered is who will produce the pretrial reports. Milstead and Minnehaha County State's Attorney Aaron McGowan think it should be run by the court system. McGowan noted that in federal courts, pretrial services reports are prepared by a court services officer who works for judges.

"I suspect that it is beneficial to have such a report prepared by a neutral party and not an extension of law enforcement or the defense," McGowan said.

McGowan said he thinks pretrial reports are an additional tool to help judges set bail but should not lock judges into following report recommendations.

Minnehaha County deputy public defender Katie Dunn is reviewing a tool being developed by the Arnold Foundation to see whether it would be appropriate for the pilot program. The foundation's assessment eliminates interviews with suspects and predicts risk based on factors such as the seriousness of charges, and previous history of violence or flight.

No decision has yet been made, Dunn said.

While the program might give county officials a clearer picture of who needs to be incarcerated, it is just once source of information that eventually will lead to recommendations on future jail space.

A study prepared for Minnehaha County last year by a consultant, Bill Garnos, noted that jail bookings increased 21 percent between 2005 and 2012, from 14,635 to 17,697. Garnos predicted that within 10 years the county might need 479 to 594 jail beds. With new jail cells estimated to cost $80,000 to $100,000 apiece, the county feels pressure to get it right.

Milstead and County Commissioner Gerald Beninga, who serves on the criminal justice advisory task force, are content to let the pilot program play out to give officials the most comprehensive picture possible of how many new jail cells to build, what kind, and where to build them.

Milstead thinks ultimately the county will find what it most needs will be high-security beds located in an addition to the existing jail or near it. Pretrial services and remote monitoring of lower-risk offenders will reduce the need to built new dormitory-like facilities for low-risk offenders.

However, "it is so important to know the number of beds we need to build," the sheriff said. "The fact some of this takes time doesn't bother me."

Beninga says judges, especially, and the community, in general, must be on board with any plans.

"We are going to be making a decision that lasts 30 or 40 years," he says.

"We don't want to rush into this to make a decision that we will bring to the community that is not acceptable to anybody.

"The last thing we want to do is have people fear that we are not keeping them safe."

CORRECTION: In the original version of this story, the Crime and Justice Institute of Community Resources for Justice in Boston, Massachusetts, was incorrectly identified as the Criminal Justice Institute of Harvard Law School.