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Pretrial Detention, Release, and Bail Practice in Oregon (2021)

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Pretrial Detention, Release, and Bail Practice in Oregon (2021) Pretrial Detention, Release, and Bail Practice in Oregon A Report of the Oregon Advisory Committee to the U.S. Commission on Civil Rights June 2021 Advisory Committees to the U.S. Commission on Civil Rights By law, the U.S. Commission on Civil Rights has established an advisory committee in each of the 50 states and the District of Columbia. The committees are composed of state citizens who serve without compensation. The committees advise the Commission of civil rights issues in their states that are within the Commission’s jurisdiction. More specifically, they are authorized to advise the Commission in writing of any knowledge or information they have of any alleged deprivation of voting rights and alleged discrimination based on race, color, religion, sex, age, disability, national origin, or in the administration of justice; advise the Commission on matters of their state’s concern in the preparation of Commission reports to the President and the Congress; receive reports, suggestions, and recommendations from individuals, public officials, and representatives of public and private organizations to committee inquiries; forward advice and recommendations to the Commission, as requested; and observe any open hearing or conference conducted by the Commission in their states. Letter of Transmittal Oregon Advisory Committee to the U.S. Commission on Civil Rights The Oregon Advisory Committee to the U.S. Commission on Civil Rights submits this report on April 30, 2021. The Committee submits pursuant to its responsibility to study and report on civil rights issues in the state of Oregon. The contents of this report are primarily based on testimony the Committee heard during virtual public meetings on September 25, 2020; November 13, 2020; November 20, 2020; December 4, 2020; December 11, 2020; and written statements. This report details concerns about Pretrial Detention, Release, and Bail Practice in Oregon. Several themes that emerged include the need for comprehensive data collection; the use of risk assessment tools in determining an individual’s liberty; the function of bail practices and its impact; and components within pretrial release. The Committee offers the Commission recommendations for addressing these issues within the criminal legal system of national importance. Oregon Advisory Committee to the U.S. Commission on Civil Rights Shoshanah Oppenheim, Chair, Portland Carl Green, Jr., Vice Chair, Portland Alison Brody, Portland Albert Lee, Portland William Curtis, Portland James Posey, Portland Laura Eckstein, La Grande Alejandro Queral, Portland Mark David Hall, Newberg Andre Wang, Happy Valley Hannah Holloway, Portland Table of Contents TABLE OF CONTENTS Executive Summary .........................................................................................................................3 Introduction ......................................................................................................................................9 Background ......................................................................................................................................9 Bail Practices in Oregon 13 Summary of Legislative Authority ................................................................................................14 Eighth Amendment 14 Equal Protection Clause of the Fourteenth Amendment 15 Due Process 16 Oregon State Statutes on Pretrial Release 16 Security Release Statutes ......................................................................................17 Releasable Offenses ..............................................................................................18 Summary of Panel Testimony ........................................................................................................19 Data Collection 19 Racial and Ethnic Disparities ................................................................................19 Gap in Data ...........................................................................................................20 Failure to Appear Data and Public Safety Rates ...................................................22 Best Practices and Recommendations ...................................................................23 Risk Assessments 23 Pretrial Detention and Release 27 Lack of Uniformity within Pretrial Release Programs ..........................................27 Legal Representation and Initial Hearings ............................................................30 Discovery Process .................................................................................................31 Monitoring of Special Defendant Populations ......................................................32 Bail 33 Judicial Discretion .................................................................................................35 Bail Schedules .......................................................................................................37 Cost of Legal System Involvement on Defendants ...............................................37 Reform Efforts ......................................................................................................39 Table of Contents Pretrial Release and Response to Mitigating Spread of COVID-19 40 Findings and Recommendations ....................................................................................................42 Findings 42 Recommendations 46 Appendix ........................................................................................................................................49 September 25, 2020 Briefing Transcript 49 November 13, 2020 Presentation Slides 49 November 13, 2020 Briefing Transcript 49 November 20, 2020 Presentation Slides 49 November 20, 2020 Briefing Transcript 49 December 4, 2020 Presentation Slides 49 December 4, 2020 Briefing Transcript 49 December 11, 2020 Presentation Slides 49 December 11, 2020 Briefing Transcript 49 Written Testimony 49 Rosemary Brewer, Executive Director, Oregon Crime Victims Law Center .........................................................................................................49 3 EXECUTIVE SUMMARY The U.S. Commission on Civil Rights (Commission) is an independent, bipartisan agency established by Congress and directed to study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, national origin, or in the administration of justice.1 The Commission has established advisory committees in each of the 50 states and the District of Columbia. These Advisory Committees advise the Commission on issues in their states that are within the Commission’s jurisdiction. The Committee hosted five web hearings on September 25, 2020; November 13, 2020; November 20, 2020; December 4, 2020; and December 11, 2020 to hear testimony from law enforcement, the legal community, academics, advocacy organizations, and individuals directly impacted by bail practices. Panelists were selected to provide diverse testimony regarding pretrial release, detention, and bail practices. Several themes that emerged include: the need for comprehensive data collection; the use of risk assessment tools in determining an individual’s liberty; the function of bail practices and its impact; and components within pretrial release. On April 30, 2021, the Committee voted unanimously to approve the report. Through this study, the Committee offers a series of findings and recommendations below. Support for these findings and recommendations are found throughout this report. The Committee strongly recognizes that addressing civil rights concerns with bail, pretrial detention, and release is multifaceted and requires collective effort among multiple stakeholders. The Committee also highlighted that the phrase ‘criminal legal system’ is used to refer to what is commonly called the ‘criminal justice system.’ This use of phrase is in an effort to recognize that the current criminal system does not obtain justice for all, regardless of race, ethnicity, religion, gender identity, sexual orientation, or socio-economic class. The use of the word justice carries moral connotations that do not always reflect the current reality of that system for black, indigenous, people of color and other historically underrepresented communities. For this reason, the Committee will utilize the criminal legal system when referring to such in an effort to recognize the realities and respect individual’s lived experiences within the current system. Findings2 1. There are currently 16 different jail management systems utilized in the 31 county jails within Oregon. These different systems make statewide data on pretrial detainees particularly challenging to collect, despite efforts by the Prison Policy Institute, the Marshall Project, and the state Criminal Justice Commission. Depending on the priorities of the jail commander and the staffing available, data can remain out of date or lacking key pieces that would be utilized 1 Civil Rights Commission Amendments Act of 1994, Pub. L. 103-419, § 2, 108 Stat. 4338 (codified as 42 U.S.C. § 1975(a)). 2 Citations are noted in the Findings section later in the report. 4 for studying pretrial detention in Oregon. Some data collection systems do not code for ethnicity, so individuals that identify as Latinx are coded as white. Other systems do not refer to federally recognized tribes that exist within Oregon. This information is important to fully understand the
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