Pretrial Services

On February 6 the body of 22-year-old Bridgette Gibbs, sister of City of Miami Police Maj. Arnold Gibbs, was found bobbing in Biscayne Bay, just off NE 22nd Terrace. Nude from the waist down, the woman's hands were tied behind her back, her face wrapped tightly with duct tape. That day her terrified boyfriend told police the harrowing tale of how they were robbed, kidnapped, tied up, and thrown into the trunk of a car. The boyfriend, who played dead, managed to get himself free after he was thrown into a canal. Bridgette Gibbs died from a combination of drowning and suffocation.

Nearly a month earlier, on the morning of Saturday, January 12, Cornell Austin, a 21-year-old Miami man with a long history of violence, had been arrested on felony charges of cocaine possession and two misdemeanor charges of marijuana possession and gambling. It wasn't his first brush with the law. In the previous five years he had been arrested, convicted, and sentenced four separate times - for carrying a concealed firearm, robbery by force, possession of cocaine, and assault on a law-enforcement officer. For Austin, the January arrest turned out to be a minor inconvenience. When he appeared at his bond hearing the following Monday morning, the county's Pretrial Services Bureau - a taxpayer-funded program designed to facilitate the release of felony defendants who are awaiting trial - recommended that Austin's $6500 bond be waived and he be released under the program's supervision. The judge agreed, and less than an hour later Austin was back on the street.

Cornell Austin was not well supervised, and he would not be free for long. On February 15, Austin was arrested and charged with the first-degree murder of Bridgette Gibbs. Along with five suspected accomplices, he's now in jail, waiting for his case to come to

The story of Cornell Austin is not unique. Of approximately 55,000 people arrested and charged with felonies in Dade County every year, more than 20,000 are released under the aegis of Pretrial Services while awaiting trial. Statistics compiled by the U.S. Justice Department indicate that more than one out of every four of those defendants fail to show up for court hearings. In addition, an uncountable number are released before authorities are able to positively identify them. Critics of Dade's pretrial-release program - veteran police officers, criminal prosecutors, and even some judges - say that during the past half-dozen years, the Pretrial Services Bureau has become a model of bureaucratic inefficiency, unable to function properly in its attempt to fulfill two mandates: ensure the due-process rights of defendants; and relieve the chronic overcrowding that plagues local jails.

Dade County has a deceptively simple system for dealing with felony defendants. After being booked into jail, those charged with less-serious offenses (possession of cocaine, burglary, or aggravated assault, for example) can be released immediately by posting a standard monetary bond set by state guidelines for each offense. If the defendant is unable to post the standard bond himself, he can pay a bail bondsman to do it for him. (Bondsmen normally charge a ten percent commission and demand sufficient collateral.) If the defendant later fails to appear for court hearings, the full bond is forfeited and placed in public coffers.

If the defendant doesn't post the standard bond, or if he is charged with a very serious felony offense such as homicide, manslaughter, or sexual assault, he is brought before a judge. At bond hearings, which are held twice each weekday, a judge determines whether the felony defendant should be released, as well as the conditions of that release. He might raise or lower the standard bond, deny bond altogether, release the individual on his own recognizance, release him with restrictions on travel or other activity, or release him under the supervision of Pretrial Services.

Critics of Dade County's program charge that defendants released to Pretrial Services lack a strong incentive to show up later in court. Unlike defendants released on private bond, who risk losing thousands of dollars or the collateral they offered a bail bondsman (a car or home, for example), those released to Pretrial Services forfeit nothing if they fail to appear for their court hearings.

In addition, critics note that among the thousands of felony defendants released to Pretrial Services each year, many have long criminal histories. People like that, they contend, are high risks and should be kept in jail or be forced to pay a substantial monetary bond. Otherwise the accountability of those defendants borders on nonexistent.

On March 23, for instance, eighteen-year-old Raul Rodriguez was arrested and charged with two counts of strong-arm robbery. Police suspect that Rodriguez - allegedly a member of the notorious street gang "Boys of Brickell" - had participated in a string of drive-by robberies in which he would jump from a car, rip jewelry from the victims, and drive off. At his bond hearing, the standard bond of $10,000 was waived and he was removed from jail under the pretrial-release program.

Two months later, still awaiting trial on the robbery charges, Rodriguez and two friends allegedly walked into Little Havana's popular Malaga restaurant and fatally shot and stabbed a patron. Rodriguez was arrested and charged with first-degree murder, armed robbery, and kidnapping. He is now in jail.

The case of Carlos Ramirez presents another disturbing example. On March 12, Ramirez was arrested and charged with strong-arm robbery. Police believe he was a key member of a well-organized gang known as the "Rolex Bandits" that preyed on well-dressed elderly people in exclusive South Dade neighborhoods. At his bond hearing he was released - without posting any bail - under the supervision of Pretrial Services.

At 2:00 p.m. on April 7 Ramirez allegedly tried to rip the gold Rolex watch from the arm of an elderly man in Coconut Grove. Police say that when the man's son-in-law rushed to his aid, Ramirez pulled a gun and fired at point-blank range. The bullet missed. Ramirez was later arrested and charged with attempted first-degree murder. He is in jail, waiting for a trial date.

"It's really a vexation to the spirit," says Pam Thomas, an assistant state attorney in the felony division who worked on the Ramirez case. "It's like the old revolving door thing - they get arrested one night, they're released by Pretrial Services the next day, and then they're arrested again a few days later."

Until the mid-1960s, the bail system was a central element of the American criminal justice process. At the discretion of each judge, criminal defendants were given the option of posting bond or sitting in jail while awaiting the disposition of their cases. In allowing the release of a defendant, a judge set a monetary bail amount he felt was sufficient to ensure that the defendant would return for his court date. But during the Kennedy and Johnson administrations, civil-rights activists argued that indigent defendants were the victims of discrimination, and that one's ability to pay should not be a condition of release from jail pending trial. "The original intention behind [pretrial release] was a good one," says Gary Whitice of Whitice Bail Bonds and the president of the Dade County Bail Bondsmen's Association. "It was to help indigent people charged with nonviolent-type crimes. It was for people who couldn't afford to post bond, couldn't afford to pay a bondsman, and who otherwise might have just sat in jail."

As a result of newly enacted federal laws, locally funded public service organizations began to sprout up around the country to assist with the release of indigent defendants in lieu of bond. In 1966 such a program was created in Dade County, and Thomas Petersen, fresh out of law school and a VISTA (Volunteers in Service to America) worker, moved to Miami to operate the program in the Office of the Public Defender.

In the early years, recalls Petersen, who is now a Dade County circuit court judge in the juvenile division, the program was careful about who was released, and 97 percent of the defendants under pretrial supervision showed up for their court dates. "There was really an art form to keeping track of these people," Petersen recalls. "We learned where they hung out and where they would go, and then we'd run down alleys and into bars to find them. We felt personally responsible and personally accountable for getting these people back in court. And I knew if they didn't return [to court], I looked bad. And if I looked bad, I lost my job."

Petersen didn't lose his job, but in 1971 he left to take a position with the State Attorney's Office. A year later, when control of the Pretrial Services Bureau was transferred from the the Public Defender to the Dade County Corrections and Rehabilitation Department (which is supervised by the county manager's office), Petersen's boss loaned him out to oversee the transition and operation of the program. He continued to serve in an advisory capacity with the bureau until 1976.

Pretrial Services didn't change much - and didn't receive much attention - throughout the Seventies. But in 1983, as the county's shortage of jail space approached crisis levels, Corrections and Rehabilitation hired an ex-Marine, Tim Murray, to head the bureau. Murray, who had been the director of pretrial services in Washington, D.C. and had served as a pretrial-release consultant to the U.S. Department of Justice, came to Miami armed with two weapons that would alter forever the way Dade County viewed its pretrial-release program: 1) a firm grasp of recent changes in the Florida Rules of Criminal Procedure, requiring judges to consider the option of pretrial-release programs for all defendants regardless of their financial status; and 2) a strong personal belief that the long-held practice of requiring monetary bail for release before trial created an inherent inequality of justice. "This republic has been based on one tenet," says Murray, now the director of Dade's Office of Substance Abuse Control. "It says on the Supreme Court building in Washington, `Equal Justice Under Law.' But there can be no equal justice under a money-bail system unless everyone has an equal amount of money."

With Murray's arrival, Pretrial Services began to grow. In 1985 the program accepted 11,000 felony defendants. By 1988 that figure had jumped to nearly 21,000. In 1990 23,443 people were freed under pretrial release. Today the bureau employs 63 full-time staffers, with an annual budget of $2.5 million in county funds. And somewhere along the way - no one, including Murray or current director Russell Buckhalt, can say exactly where - the function of the program took a radical turn. No longer is the bureau a public-advocacy program for indigent and low-income defendants who would have trouble posting bond. Above all, Pretrial Services is now considered to be a mechanism for easing jail overcrowding - a safety valve for the corrections system.

"Our mandate," confirms Buckhalt, a 22-year veteran of the corrections department who took over Pretrial Services in 1989, "is to assist in the relieving of [jail] overcrowding, and to look at people who can be released on a nonfinancial status."

That reassessment of purpose troubles some early proponents of the initial, need-based mandate. "The program has just gotten too massive," says Judge Petersen. "It's lost its original sense of what it really is supposed to be. Pretrial [release] should exist only for those people who really need it - the indigent and other low-income people."

Under the current system, Pretrial Services officers interview every person arrested on felony charges and taken to the county jail; and at the defendant's bond hearing, typically held only hours after arrest, a bureau worker tells the judge whether the program is willing to accept the defendant. Although no figures are available, bureau director Buckhalt - as well as many bail bondsmen and assistant state attorneys - says that judges normally accept Pretrial Services' recommendations. Once out of jail, the defendant must abide by certain rules. These requirements, determined on an individual basis by bureau workers, typically consist of a weekly "check in" phone call to the Pretrial Services office, occasional counseling sessions, and generally staying out of trouble. Defendants are prohibited to leave the tri-county area (Dade, Broward, and Monroe) without permission.

But Judge Petersen argues that the operation of Pretrial Services entails a dangerous conflict of interest. How can the Corrections Department objectively oversee the jail and the Pretrial Services Bureau - two agencies with seemingly contradictory needs and interests? "If the jail is running the pretrial-release program and if they have an overriding interest in letting people out - which they do because it's horribly overcrowded," says Petersen, "then the program is going to become a vehicle for getting people out of jail rather than a vehicle for objectively determining who should be released without bond and who shouldn't."

Other critics agree. "I'm not a real fan of the program in general," says Abe Laeser, Dade's senior trial assistant state attorney. "I think the primary function [of Pretrial Services] is to be a clearing-house for the jail as opposed to a program that actually cares whether or not this person or that person is going to cause a problem if they are released." The Bail Bondsmen's Association's Gary Whitice says, "Pretrial release is simply used to maintain somewhat of a cap at the jail, and it seems that the main consideration - which is whether or not the guy seems like a good risk of showing up in court again - is not really taken into serious consideration."

Assistant State Attorney Ken Behle takes the assessment a step further, arguing that the Pretrial Services Bureau isn't held responsible for the actions of defendants freed under the program. "You've got to keep in mind that this is their job," Behle says of the bureau. "And if no one were let out in their custody, not only would the jails be filled, but they would most likely not be in business any more. And so, knowing there is very little risk to them, and that they are not going to be held accountable [for the program's failures], their incentive will be to take someone as opposed to keeping that person in jail."

Perhaps the strongest supporter of pretrial release is Judge Gerald Wetherington, who stepped down June 30 after ten years as the circuit court's chief administrative judge. As chief judge, Wetherington had direct administrative control over both the jail and the Pretrial Services Bureau. Given the nearly 55,000 felony arrests each year, Wetherington contends, the bureau has performed consistently well under difficult conditions. "When you think about handling 135,000 [felony and misdemeanor arrests] a year with what we're doing, you have to say that our Department of Corrections and the pretrial-release program have done a miraculous job," says Wetherington. "This community owes these people a tremendous debt of gratitude."

But Judge Petersen says it is misleading to measure the program's success by the number of defendants it releases. A better measure, he argues, would be the percentage of released defendants who return for their court hearings. Buckhalt says that in 1989 only twelve percent of pretrial-release defendants failed to show up in court. By his calculations, 1990 was even better, with a failure-to-appear rate of little more than ten percent.

If these figures are accurate, Dade County's Pretrial Services Bureau is operating one of the most successful programs in the nation. But bail bondsmen and assistant state attorneys strongly doubt Buckhalt's statistical methodology; most of them estimate that between 25 and 30 percent of Pretrial Services' defendants skip their court dates. Those higher estimates are confirmed by a U.S. Department of Justice study conducted in 1989.

Federal researchers tracked 489 randomly selected Dade felony defendants from February 1988 through February 1989 and calculated Pretrial Service's failure-to-appear rate, along with that of defendants released on their own recognizance. (Although the study did not distinguish between the bureau's defendants and those released on their own recognizance, investigators who collected the data say the sample was almost entirely composed of Pretrial Services defendants.) The results dramatically contradict Buckhalt's figures.

Instead of a 12-percent failure rate, the federal study showed a 27-percent failure rate. According to the Justice Department researcher who supervised the study, the vastly different figures are the result of statistical manipulation. Buckhalt's method of calculating the failure-to-appear rate, says the investigator, is not common and is not the method employed by the federal government. It does, however, produce figures that give the appearance of great success. (By way of contrast, bail bondsmen whose clients have a failure-to-appear rate higher than five percent will be out of business, according to Roger Handberg, a political science professor at the University of Central Florida. Private bail bondsmen put this rate at closer to two percent.)

Even more convincing are figures compiled in 1990 by the Bail Bondsmen's Association, which commissioned the Metro-Dade Police Department to write a computer program that would calculate the total number of people who had rearrest warrants issued for them as a result of their failure to appear in court. In 1989 rearrest warrants were issued for 7844 people in Dade, and 76 percent (5964) of those were defendants released through Pretrial Services. Dividing this figure by the total number of people released to the program in 1989 (21,651) the failure-to-appear rate is 27.5 percent - consistent with the Justice Department's study. "If that figure is correct," Petersen laments, "it's very unfortunate. How can they justify their existence with that kind of performance?"

Another measure of the program's success (or failure) might be the rate of Pretrial Services defendants who were rearrested on new charges while awaiting trial, people such as Cornell Austin, Raul Rodriguez, and Carlos Ramirez. (A 1986 study undertaken nationwide by the Department of Justice's National Institute of Justice revealed that defendants released on programs like Pretrial Services committed twice as many crimes while awaiting trial as did defendants released on monetary bail.) Buckhalt places the 1989 rate at 6.7 percent and the 1990 rate at a scant 4.2 percent. But the Department of Justice study based on 1988 figures found the Dade rearrest rate - for Pretrial Services defendants combined with those released on their own recognizance - to be 9.5 percent.

Yet another telling statistic is the percentage of the bureau's defendants who failed to abide by the basic conditions of their release to Pretrial Services. In 1989 nearly half - 48 percent - of the defendants referred to counselor supervision were listed in bureau files as "unsuccessful referrals," which resulted in a "violation memorandum" being sent to the court by Pretrial Services. But according to Buckhalt, judges rarely, if ever, revoke a defendant's release, even after receiving such a memo. "The court will more than likely just keep the person on pretrial [release]," he says candidly. "All the court cares about is that he shows up in court." In 1990, Buckhalt says, no figures were kept for the program's rate of unsuccessful referrals.

In stark contrast to Judge Wetherington's assessment of the program, Petersen remains appalled. In recent years, he believes, Pretrial Services administrators have become so obsessed with the single issue of jail overcrowding that they have adopted a fire-sale approach to handing out pretrial release. "In my experience at bond hearings, I've noticed that Pretrial Release was trying, for whatever reason, to take everybody without really checking them out very effectively," says Petersen, who, like all circuit court judges, presides over bond hearings for one or two weeks each year. "And I was sure in a lot of cases that those people were not going to show up [for court] if released. It seems as though they have a vested interest in taking out large numbers of people, and they shouldn't do that. They should confine themselves to taking out people who are good risks of showing up."

Currently Pretrial Services officers use a scoring sheet during each interview to assess the defendant. Yet there is at least one obvious flaw in the system. If an individual has no proof of identification, bureau officers - and the court - are essentially forced to take the defendant's word for who he really is, as well as for his criminal history. Buckhalt says the jail will not hold arrestees long enough for police to verify their identity - a process that normally takes between four and ten hours. Consequently, judges often release defendants through Pretrial Services "pending a positive identification." And by the time law-enforcement officials know who a defendant really is, that person is already back on the street, thanks to pretrial release. Bail bondsman Frank Di Rocco, who worked as an IRS investigator for twenty years, says he sees it happen every day: "If you go over to the jail after bond hearing, you'll see all these people getting out on pretrial [release] and they'll all be high-fiving each other and they'll be saying, `I can't believe they bought that crap again.' These guys have the system figured out."

"It's common, very common," affirms Buckhalt. "Because you're dealing with an intelligent criminal and they know the system better than you or I do." But Judge Wetherington, who admits that defendants are released after giving false information "from time to time," insists that there is no easy solution to the problem. Holding defendants the extra few hours necessary to complete a fingerprint identification would place too much strain on the jail system. "It can't be done," he says flatly. "We're dealing with a crisis situation here in Dade County."

And that very crisis, charge critics of the system, results in the release of defendants who are positively identified before their bond hearings and who have long criminal histories. Pretrial Services officers have access to prior-arrest records, and presumably people such as Raul Rodriguez, Carlos Ramirez, and Cornell Austin - who had four prior felony convictions and a documented history of violence - would not be recommended for pretrial release. But they all were. "You see these guys with long arrest records," says Assistant State Attorney Pam Thomas, "and you know that once they get released, they're going to go out and commit more crimes and get arrested again and again."

Assistant state attorneys say that Pretrial Services should not shoulder all the blame, that judges are as much, if not more, at fault for improper releases. Judge Wetherington, who says he has spent more time on the jail-overcrowding problem than any other issue over the past ten years, insists that he has never told other circuit court judges what kind of people they should and shouldn't release. But in 1983 Wetherington issued an administrative order that takes effect whenever the jail population reaches 1800. Under this order, Pretrial Services has the authority to override the ruling of a bond-hearing judge and release from jail virtually any defendant it chooses. In 1990 a total of 2832 defendants were released by Pretrial Services after they had been previously rejected by the program and had either been denied bond or had been unable to post the monetary bond set by the judge.

Calvin Mapp, administrative judge of the criminal traffic division, says that judges try not to release defendants they believe to be dangerous. But they are also very aware of the problem at the jail. "A lot of the judges have to work very closely with Corrections, because we are constantly overcrowded," says Mapp. "And if we get a note from Corrections saying, `Release as many as you can,' we do this, because we know what the problem is over there."

And judges occasionally go so far as to release defendants charged with serious felony offenses. Murder defendants, Buckhalt says, have petitioned for, and been awarded, pretrial release. In spite of state guidelines, the bureau director explains, judges have the ultimate authority to set any release conditions they determine to be appropriate. Andy Hague, an assistant state attorney in charge of gang prosecutions and organized crime, says he is currently prosecuting two defendants charged with manslaughter and a third charged with second-degree murder, and all three were released by a judge to Pretrial Services. "I'm not happy about it at all," says Hague. "I've had armed robbers, murderers, and the judge turns around and puts them on pretrial release. It's ridiculous and it irks the hell out of me."

"It's a judicial policy, in that the judges are the ones who decide who does and doesn't stay in custody," says Assistant State Attorney Abe Laeser. "However, they are more than grateful to have some sort of a program that's going to help them get people out of the jail every time a federal judge looks over their shoulder and says that the jail is overcrowded."

Laeser is referring to the long-standing federal court order that requires Dade County to maintain a jail population cap of 1336. For each day the population exceeds that figure, the county is to be fined $1000. But the jail population has not been that low "for at least ten years," says William Hoeveler, the federal judge assigned to the ongoing lawsuit over jail conditions, and the fine has never been imposed. On any given day, Hoeveler admits, the actual jail population hovers around 1800, but he has never imposed the fine because he is confident the county is taking serious steps - through its pretrial-release program and the construction of the new Metro West jail facility, slated for completion this fall - to correct the situation.

But the completion of a new facility will not necessarily spell the end for pretrial release. The Florida constitution guarantees a defendant's right to reasonable bail and release before trial, and state judicial guidelines stipulate a presumption in favor of nonmonetary release as the first alternative. Now that Pretrial Services is firmly entrenched, it would be almost inconceivable to once again limit its scope to the indigent. Like all bureaucracies, this one has developed a near-organic existence of its own. In just a few years it has become an established element of Dade's criminal-justice system.

"This is just a classic bureaucratic nightmare," says bail bondsman Frank Di Rocco. "The chief judge is shifting responsibility to the courts, and the courts are shifting the responsibility to the police. And in the middle is Pretrial Release, which seems to be accountable to virtually no one. They just keep doing their thing, day after day, and the criminals just keep moving in and out of the system. It's totally out of control and nobody has any idea where it's all going to end.


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