Maricopa County Adult Probation Department
620 West Jackson Street
Phoenix, AZ 85003-2423
The Maricopa County Adult Probation Department (MCAPD) appreciates the opportunity to provide feedback on the proposed Rule changes.
We are looking forward to the changes taking effect, and only have a few comments.
1. General Comment:
The current practice in Rule 3.2.a of how and when bonds are set, when issuing a warrant, (Grand Jury warrants, Superior Court FTA ) does not utilize risk-based decision making, because the information allowing for risk-based decision making is not available when the amount of bond is established. Currently, when a warrant is issued, the judicial officer signing the warrant makes an individual determination regarding the amount of a secured appearance bond if the individual is bailable as a matter of right (Rule 3.2.a) and it is generally affirmed by subsequent judicial officers. Judicial officers tend to honor previous decisions made regarding bond amounts, even if new information is available such as the results of a risk assessment that predicts the defendant’s likelihood of appearing in court and staying crime free while their case is pending. This existing practice is not consistent with the goals of the Task Force and low risk people that are indigent are not able to be released because of secured bond determined without relevant information. We are recommending a change be made to Rule 3.2.a to delete the ability for the judicial officer issuing the warrant to state the amount of the secured appearance bond and instead, that release decisions will be made at the IA hearing, or any hearing subsequent to arrest, where risk-based decision making tools are available to allow the judicial officer to make an informed decision. This process should exclude probation violation warrants.
Rule 3.2. Content of warrant or summons
a. Warrant. The warrant shall be signed by the issuing magistrate and shall contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty. It shall state the offense with which the defendant is charged and whether the offense is one to which victims' rights provisions apply. It shall command that the defendant be arrested and brought before the issuing magistrate or, if the issuing magistrate is absent or unable to act, the nearest or most accessible magistrate in the same county. If the defendant is bailable as a matter of right, it shall state the amount of a secured appearance bond decisions regarding release shall be made by a magistrate at the time of arrest, when a risk-assessment is available to inform the decision.
2. General Comment:
From our experience, there is confusion between the definitions of “bailable” and “bondable”. We propose adding clarifying definitions as to the meanings.
3. Proposed changes to Rule 6.1:
There is come confusion as to the intent, and when the counsel will be present. The way the proposed changes read, it sounds like the appointment of counsel occurs after the IA hearing. If so, what about grand jury cases or any case where charges are already filed? Does this mean that counsel will be present at the IA hearing for these cases?
We believe the appointment of counsel should occur at the IA hearing, as it is a key juncture in a person’s life, who is presumed innocent. Very consequential decisions will be made at the IA hearing and one of the goals of the Task Force is to recommend best practices for making release decisions that protect the public but do not keep people in jail solely for the inability to pay bail.
Providing legal counsel at the IA hearing is a best practice and it will be a good check and balance to help support the Task Force’s goals and practices for Arizona Courts of people not being jailed pending the disposition of charges merely because they are poor. Having legal counsel present at the IA hearing will help support and individual’s release on OR, or to Pretrial Services for low to moderate risk individuals, while not increasing risk to public safety.
There is research indicating that when low risk individuals are detained in a pretrial status for 2-3 or more days, they are more likely to commit new crimes and fail to appear in Court and more likely to commit a new crime within two (2) years of post- disposition.
As an alternative to having counsel present at the IA hearing, the Court could require a second review hearing within 72 hours of being detained to re-evaluate moderate and low-risk offenders, prioritizing the low risk.
Relating to victims’ rights—the victims in victim-related matters could be advised at the IA hearing that there will be a second review hearing subsequent to the IA hearing where custody orders will be determined.
“An indigent defendant shall be entitled to have an attorney appointed for any criminal proceeding which may result in punishment by loss of liberty.
“The Court should require a second review hearing within 72 hours of being detained to re-evaluate low-risk and moderate risk offenders.”
4. Proposed changes to Rule 7.7:
It is unclear what “temporarily” modifies means in this Rule. Once a Superior Court Judge modifies the conditions of release, and notifies the originating lower-jurisdiction of the release order, how does this become a “temporary” situation? We believe the word “temporarily” should be removed from the proposed verbiage.
Also, we believe there is a potential gap in this Rule proposal. If a probationer is released to treatment under this Rule, and subsequently absconds, a probation violation warrant would likely be filed. However, how would the lower-level Court be made aware of this circumstance? We believe there to be a responsibility to communicate the status of the probationer while on release under the provisions of this Rule. We would like to see the Court also provide a copy of the release order to the probation department so that appropriate follow up can take place and the probationer can be directed to return to the lower-jurisdiction Court to address the misdemeanor matter when back in the community.
A superior court judge may modify the conditions of release that were imposed in a misdemeanor case of a probationer who is detained due to failure to post a secured bond in that case in order to permit release of the probationer to participate in a treatment program. The court shall provide instructions to the probationer as to how to handle the misdemeanor matter, and the clerk must provide the order to the court that imposed the conditions of release in the misdemeanor case as well as to the probation department. Further, the probation department shall notify the court of any change to the probationer’s status if the probationer leaves the treatment program prior to successful completion or a probation violation warrant is issued, so that the court may then notify the lower-jurisdiction court of the change in status.