One of the biggest fears of pretrial release is that criminal defendants who get out of jail will commit new crimes.
In the year after Clatsop County created a pretrial release policy that takes a scientific approach to measuring risk, the initial data is reassuring.
From September 2017 through August, 4.1 percent of defendants who were released pending trial committed new crimes, and the figure dropped to 1.5 percent over the past few months.
More defendants are also showing up for court. The failure to appear rate for the first year was 27 percent, the county estimates, down from 32 percent.
"It shows that the decisions we're making are pretty good," said Lt. Matt Phillips, the jail commander.
The new policy has yet to make a difference in the high share of inmates who are in custody awaiting trial — about 70 percent — but it has started to relieve pressure on overcrowding at the 60-bed jail in Astoria.
The county was forced to release 324 inmates because of overcrowding from September 2017 through August, down from 573 inmates the previous year. The inmates who get out because of overcrowding, compared to defendants who are screened for pretrial release, often pose greater risk of committing new crimes or missing court dates.
"So it's working," Judge Paula Brownhill, the presiding judge of the Circuit Court, said.
Burdened by an overcrowded jail, and concerned that too many defendants are locked up before trial, Brownhill ordered the pretrial release policy in September 2017.
The judge had formed a work group to come up with ideas in response to the county's comparatively high use of state prison for drug and property crimes. The state, in an initiative known as justice reinvestment, provides incentives to counties to supervise more defendants locally through jail and probation to help contain more expensive prison costs.
Under the policy, a pretrial release specialist uses risk assessment tools to screen defendants and does interviews to determine whether they have jobs, housing and relationships to tie them to the community. The specialist makes recommendations to the court at arraignment about whether defendants should be released or held in custody while their cases are being resolved.
When defendants are released, an alternative custody deputy monitors whether they are meeting the conditions of their freedom, which, depending on risk, can include checking in with the sheriff's office, drug and alcohol tests and electronic monitoring. The deputy also calls or texts them about upcoming court dates.
"The jail is a finite resource and the pretrial program has allowed us to better identify and keep in custody those who pose the greatest risk to the community," Phillips said in an email.
Before the policy, the court mostly relied on a defendant's criminal history when evaluating risk.
"We're taking a lot fewer chances with the pretrial release guys, because they can verify whether the person even has a place to stay, whether the person has a job," District Attorney Ron Brown said.
By using a combination of the risk assessment score, and information learned from interviews, the court gets a more complete picture, which can be important given that many defendants are struggling with alcohol and drug abuse or mental health issues.
"So I like it. And I like the guys that are doing it — they're cops," Brown said. "We get way more information than we used to get."
Research has shown that low- to medium-risk defendants face escalating consequences — like losing a job or an apartment — the longer they stay in jail while their cases are being heard. But the risk that defendants will commit new crimes or not show up for court increases the longer they are free before their cases are resolved.
A new criminal docketing system is expected to speed up the process. The time between arraignment and the next court date will shrink to weeks, instead of months.
"The quicker we resolve cases, the more successful defendants will be on pretrial release," Brownhill said in an email.
Josh Marquis, the former district attorney, had strong philosophical disagreements with the court and some at the sheriff's office over pretrial release. He liked getting more information about defendants at arraignment, but considers justice reinvestment another policy misfire from Salem.
"Accountability and truth in sentencing are critical values in my views as a mostly retired prosecutor and citizen," Marquis said in an email.
Sheriff Tom Bergin, who has also been critical of criminal justice reform, recognizes the county is going in the same policy direction as most of the state. Despite his reservations, he trusted Phillips, his jail commander, and Lt. Kristen Hanthorn, who leads the sheriff's office Parole and Probation Division, to implement pretrial release in a way that protects public safety.
"I am comfortable with it and also realize that when we have a more suitable jail for our needs, offenders will also have accountability if not willing to take the path of least resistance," the sheriff said in an email.
Brown, who took over from Marquis as district attorney in January, said the county had little choice but to expand pretrial release given the overcrowded jail. He said he would revisit the concept once a new jail gets built in Warrenton.
Voters in November approved a $20 million bond measure to convert the former North Coast Youth Correctional Facility into a new jail. The jail will have 148 beds, with the potential to expand.
Overcrowding at the jail in Astoria makes it difficult for the county to experiment with justice reinvestment. More space will enable the county to supervise more defendants locally, both by ensuring inmates serve their full sentences and through short-term jail time for probation violations.
But a larger jail might take the urgency away from pretrial release.
"I would say that could be a risk if people want to default back to the old way of doing it," Phillips said.
Circuit Court judges and the district attorney are elected, and ultimately accountable to voters, so they are not immune to public backlash when things go wrong.
Since judges have the final word on pretrial release, they are often the most reluctant to take risks, even when the odds are remote.
"Everybody hates to get burned," Brown said. "'I promise I'll come back, judge. I promise I'll come back.' And you got lied to."
While horrific crimes committed by defendants who were released before trial have shaken the criminal justice reform movement nationally, lesser crimes can also be embarrassing.
Soon after the county's pretrial release policy took effect, The Daily Astorian highlighted the case of a young man with a drug problem who faced an escape charge for running away from Warrenton police. He was released, despite a risk assessment score of 95 out of 100, after he promised the judge he would live with his mother in Seaside and return for court.
Instead, he was arrested a few days later in Portland for heroin possession. Records show he missed several court appearances in Clatsop County before finally resolving the escape charge with a guilty plea in August. He has since been convicted of felony charges of identity theft in Multnomah County.
Brownhill said she does not know if the three judges on the Circuit Court will ever be entirely comfortable with pretrial release, "but we're moving in that direction."
"It's easy for a judge to set bail, rather than authorize release, because then we're not responsible if that person does commit a new crime or contact the victim," she said.
"But I'm realizing that that's not the standard that we should be following. So that's why I say I think we're moving in the right direction as far as embracing the risk. I'm not sure all three of us are there yet. But it's getting easier for me."