On another day, Kyle Long would have probably stayed in jail.
The 24-year-old faced an escape charge for allegedly running from Warrenton police in May. His score on a new risk assessment tool to help judges decide whether defendants should be released before trial was 95 out of 100.
Long could not keep a job because of his drug abuse and had been living on the streets of Portland.
But a pretrial release specialist recommended Long be freed — over the objection of District Attorney Josh Marquis — since his mother told his probation officer her son could live with her in Seaside before his next date in Circuit Court.
“Tell me why I should let you out of jail,” Judge Dawn McIntosh asked Long at a hearing in early October.
“Are you going to go live with your mom if I let you out?”
“Yes, ma’am,” Long said. “I also … I know this isn’t … it’s not a ‘poor me’ story, but …”
“I don’t want you to talk about anything that could be used against you related to this crime,” the judge said. “All I want to know is, if I let you out will you go live with your mother?
“Yes, ma’am,” Long said.
Clatsop County’s 60-bed jail in Astoria is chronically overcrowded. While the county explores whether to renovate the former North Coast Youth Correctional Facility in Warrenton into an expanded jail, the jail commander and the courts have tried to make more effective use of space.
Seventy percent of inmates at the jail are awaiting trial, a figure criminal justice experts consider too high.
Paula Brownhill, the presiding judge of the Circuit Court, signed an order in September for a new pretrial release policy based on the risk to public safety, the likelihood of new criminal activity, the threat to victims, and the probability the accused will appear for court.
Ditching a locally drawn measurement known as the Matrix, the court order directs the county to use two risk assessment tools — the Public Safety Checklist for Oregon and the Virginia Pretrial Risk Assessment Instrument — to determine the risk of pretrial failure and make release recommendations.
The court order grew out of a work group Brownhill formed earlier this year to examine the county’s comparatively high use of state prison. Under a reform drive known as justice reinvestment, Oregon has provided grants to counties to supervise more drug and property crime offenders locally, through jail and probation, rather than sentencing them to more costly state prison stays.
An overcrowded jail makes that shift difficult.
“Our jail has always been overpopulated with pretrial defendants,” Brownhill said. “And I’m really hopeful that we can turn that around so that we can put sentenced inmates in the jail and let more of the pretrial population, who are presumed innocent, out while they’re awaiting trial.”
Using justice reinvestment grant money, the county hired a pretrial release specialist who prepares risk scores and interviews defendants before arraignment. The interviews help the specialist vet whether defendants have jobs, places to live and family ties — life anchors that increase the chances they will appear for court if they are released.
The trial court administrator estimates the county’s failure-to-appear rate is about 32 percent, a burden that can slow the wheels of justice.
Lt. Matt Phillips, the jail commander, said the Matrix was never scientifically validated for accuracy and gave too much weight to the failure-to-appear component. The new risk assessment tools have been validated elsewhere, but will take a few years to perfect locally. The Public Safety Checklist, the automated tool, functions like an actuarial table for life insurance or a FICO score, a credit risk analysis that helps lenders determine whether consumers will make mortgage or car payments.
“We would never try to maximize release at the cost of public safety,” Phillips said.
In the first month under the new policy, judges already are finding they have more information to make rulings.
“Previously, it was the DA telling us the criminal history. And that’s about it,” Brownhill said. “So now, not only do we have the risk assessment, but we have verification of housing, employment.”
In the district attorney’s office, the cases that stack up for 1:15 p.m. arraignments on most days each week are known as “the bucket.” Instead of delegating to junior prosecutors, Marquis often handles arraignments himself, a front-end screening of defendants who have been locked up.
The veteran prosecutor is one of the biggest critics of justice reinvestment and dug in his heels after Brownhill formed the work group to discuss policy changes. But he recognizes the acute problem of jail overcrowding and sees value in a pretrial release specialist providing more information about defendants.
“I think the idea of having someone interviewing them is a great idea,” Marquis said.
The district attorney’s concern is that judges will reflexively place too much credence on risk scores and pretrial release recommendations.
“Some of the algorithms — and over-reliance on a number — have resulted in some real tragedies,” Marquis said.
Edward French, a film scout and photographer, was shot and killed in San Francisco in July during an early morning robbery. The San Francisco Chronicle reported that one of the two suspects — who was arrested days before the murder for gun possession as a felon, and who was on probation for car break-ins — was released from jail by a judge based in part on a risk score.
The CEO of the nonprofit that conducts the risk assessments in San Francisco told the court afterward that a staffer had miscalculated the suspect’s jail history, leading to an incorrect score.
Clatsop County uses different risk assessment tools than San Francisco. But the example shows the hazard of making the wrong calculation.
“FICO is not a guarantee that the person is going to pay their bills. It’s a prediction that they’re going to pay their bills,” Marquis said. “The difference between FICO scores and release scores is the worst thing that happens in a FICO score is somebody misses a payment. The worst thing that happens if you let the wrong person out of jail is somebody could get hurt or killed.”
Several counties in Oregon and across the nation have started to focus on pretrial assessments, gathering information and compiling data that could help improve decision-making at each step of the process.
Over time, some experts hope a data-driven approach might help drain the bias and inequality that often clouds the criminal justice system.
In Yamhill County, which has prioritized pretrial justice for the past several years, the failure to appear rate dropped from 17 percent to 4 percent.
Unlike Clatsop County, Yamhill County’s 250-bed jail in McMinnville is usually under capacity at about 175 inmates. The county has been able to reduce the share of inmates awaiting trial from 45 percent to about 35 percent.
Jessica Beach, the director of the Yamhill County Department of Community Justice, said the county heard early concerns about relying too heavily on risk assessment tools to make jail release decisions.
“By its nature, the court is an adversarial system. And so I think it’s important for everyone to have a voice,” the former probation officer said. “Never, ever, ever do we suggest that the assessment make the decision.”
‘No way we’re letting this guy out’
Alan Palmrose, Clatsop County’s pretrial release specialist, is a former sheriff’s deputy. When he first saw Long’s risk score of 95 earlier this month, he thought: “No way we’re letting this guy out.”
The high score was influenced by Long’s age and his compressed criminal history as a young adult. Court records show he has felony convictions — for identity theft, unlawful use of a vehicle and drug possession — along with a string of misdemeanors and probation violations.
The escape charge stemmed from an incident in Warrenton in May. Long was sleeping in a bus without permission at Calvary Assembly of God Church on South Main Avenue, according to court records. Police Chief Mathew Workman told Long he would ask the church whether they wanted to take any action. The chief also discovered Long had a warrant for his arrest.
Long, who had asked to collect his belongings from the bus, allegedly jumped out the back and bolted. After Workman chased Long down a slough and threatened to charge him with escape, Long allegedly ran again. He was eventually arrested after he was spotted hiding behind a large dumpster and again tried to flee.
While Long’s high risk score made him an improbable choice for pretrial release, other factors broke in his favor. The jail was overcrowded on the day of his hearing. His escape charge is a misdemeanor, not a felony.
More importantly, Palmrose learned from Long’s probation officer that Long’s mother was willing to let him stay at her home in Seaside.
“She said he could live there,” Palmrose said, “as long as he stays sober.”
A pop-up tent in Portland
Five days after Long was released from jail in Astoria, a passenger at the Gateway Transit Center in northeast Portland told a transit police officer Long was injecting heroin on a train.
When the transit officer tried to talk with Long, he appeared agitated and had a stick in his hand, court records show. He agreed to drop the stick and, when asked about his drug use on the train, admitted he was carrying heroin. The transit officer saw a syringe sticking from his pocket.
Long was arrested and charged with misdemeanor heroin possession.
Rather than stay with his mother in Seaside, Long told authorities he had been living in a pop-up tent in Portland, using heroin and meth daily.
Long is eligible for a drug treatment program if he agrees to plead guilty or no contest. If he successfully completes treatment and probation, the possession charge may be dismissed.
Long, who was released from jail in Portland, has until an early November court date in Multnomah County Circuit Court to decide.
His next court date on the escape charge is in Astoria in late December.
Read more online
The Daily Astorian has examined how Oregon’s justice reinvestment initiative has played out in Clatsop County.
• County out of step with state drive to reduce prison use: http://bit.ly/2hdJM5F
• Work group to look at prison use: http://bit.ly/2zJ08du
• ‘So the stakes are going to be quite high for you’: http://bit.ly/2gIbHu3
• Oregon takes new steps to reduce prison use: http://bit.ly/2y92IgD