MN Judicial Council weighs eliminating criminal history information from pretrial release forms

Deanna Weniger, Pioneer Press, St. Paul, Minn.
·4 min read

Jan. 21—The Minnesota Judicial Council has been weighing with how to best predict if a high-level offender will return to court if released. The data has led them to a conundrum of sorts.

Overall, according to their findings, knowing an offender's criminal history and whether they've failed to appear in court before are good tools for judges to determine whether the offender will follow through in attending future court dates. However, it seems for the Black and Indigenous populations, the predictor was found to be less useful.

In a council meeting Thursday, members struggled with whether to do away with criminal history and "failed to appear" warrants on the pretrial release form in order to make the form less bias against those populations, or to choose a compromise in which the information is available, but not included in the offender's overall score.

The score determines the offender's risk factors which inform the bail amount to be set.

"I feel like we're the stepsister in Cinderella trying to fit our foot in that glass slipper with this tool," said Seventh District Judge Sarah Hennesy about the compromise option. "If we're taking out the two most predictive factors — which I get, we need to do because those seem to be causing our problems with race — and then sort of putting them back in on the back end by letting the judge use them — I can't get my head around why we're gonna stick with this tool."

PRETRIAL RELEASE DECISIONS

In 2018, the council implemented the Pretrial Release Initiative with the goal of ensuring that judges have the most-predictive and leas-biased information available for making pretrial release decisions.

Since that statewide implementation, the council has been doing a validation study which checks to see if their new tool is working like they thought it would. Turns out, it's not.

At odds were the two directives — find out which factors best predict if an offender will return to court if released and make sure those factors are not biased against any group.

Overall, the statistics show that if a person has failed to appear to court in the past three years, is not employed or in school, has pending cases and has a significant criminal history, releasing them is risky. It's unlikely they'll return on their own for court.

But, for Black and Indigenous groups, those predictors were less clear.

"So we think that part of the issue ... is that this kind of full history was leading to a little bit of those differences in that someone's behavior 20 years ago may not be a reflection of who they are today," said Grant Hoheisel, research and evaluation manager at Minnesota Judicial Branch.

DROPPING CRIMINAL HISTORY, FAILED TO APPEAR SECTIONS

According to the algorithms run by Hoheisel and staff, the only way to predict what an offender might do and have that predictor be consistent across all people groups, the form would need to drop the criminal history and failed to appear sections in lieu of a review of how the offender is doing the day they make their first appearance. Is the offender currently on probation? Is the offender currently being monitored for recent convictions?

Sixth District Judge Leslie Beiers said she could see the change as being a bias check for judges as long as the criminal history information was still made available.

"What we've been told is that the way that we're doing this has resulted in racial bias for African American defendants," she said. "I can still consider this, but I have to be cognizant that this criminal history of an African American or an American Indian defendant is not predictive. So it's almost like it checks your bias."

But completely doing away with the criminal history and failed to appear information was too much for some judges on the council.

"I can't imagine setting bail without that information," said Seventh District Judge Michelle Lawson. "I literally think I would have to be reprogrammed or retrained in order to not consider criminal history or recent failure to appear when setting bail."

The council made no decision Thursday and has asked for a few more months to study it and explore what's being done nationally.