Spurgeon Kennedy has over 40 years of experience helping adult justice systems implement fair, legal, and effective practices that respect the rights of justice-involved individuals and the safety of local communities. Spurgeon has provided technical assistance and support to local, state, and national justice systems and organizations on issues such as improving bail decision-making, implementing outcome and performance metrics, developing pretrial services agencies, alternatives to incarceration, system mapping, pretrial diversion, and work- and caseload analysis.
CJI: Could you give us a very brief definition of data-driven practices and evidenced-based practices and explain the difference between the two?
Kennedy: I see data-driven practices as turning data into knowledge, using the facts and figures to inform decision making. Unfortunately, I think a lot of jurisdictions are still struggling with how to collect data, let alone what to do with it.
Evidence-based practice is really just committing to doing the things you know work. For example, making a bail decision based on what we know about a person’s likelihood of appearing in court rather than, “well they are charged with this, so let’s just put bail amount X on it and move on.” It is not just saying, “we do the practice,” but “we commit to the idea of doing the right thing.” Evidence-based practice is certainly the way to go, and using data can help you determine whether what you are doing is working for you.
CJI: How would you say the pretrial field has evolved?
Kennedy: We have advanced quite a bit in some areas and, unfortunately, I think we have stood still in some other areas that really matter. If I had to choose one major improvement, it would be that we now know more about risk in the pretrial context than we have ever known. We know the nature of pretrial risk— that is, a person’s risk of missing a scheduled court date or having a new case filed against them ahead of trial—and how to predict it. We know that risk is dynamic, that it can happen at different points in the pretrial process for different reasons. It isn’t a static thing where you are risky on day one and just as risky on day thirty. Being able to understand risk helps us understand how best to monitor it, how to supervise it, and more importantly what not to do.
We know that some of the things that we thought were important about risk in the 1980s— like where you live, where you work, how many family members you have—really aren’t as important to predicting whether or not you are going to make it to court. We’ve grown in that area.
CJI: What elements are essential to make data-driven and evidence-based release decisions? What pieces of implementation does the jurisdiction really need to make sure that those decisions are driven with the evidence?
Kennedy: Since decisions must be individualized according to the law, you must know as much about the person with a pending charge in front of you as you can, particularly those things that you know are predictive of court appearance and arrest-free behavior. Being able to identify the data a judge needs to have in front of them when they make a decision is critical.
A lot of jurisdictions do not have the ability to collect that kind of data and present it to the court. Being able to identify what is important to the bail decision, being able to know where that data is located, and getting it in a timely manner to decision makers are critical functions that we are still, frankly, struggling to do in most court systems.
Once you deliver that information, you have to make sure that there are options that make sense to a judge. What does the information mean to the court? How should it address the risk level? What options are the pretrial agency offering? Is it offering the kinds of supervision and monitoring that are designed to meet the level of risk?
CJI: What types of outcomes did you see as a result of these changes to the decision-making process?
Kennedy: The ones that really matter to pretrial agencies and the court systems: the maximum number of defendants being released; good court appearance rates; arrest-free behavior by persons with pending cases. Those are the outcomes you to want to see.
CJI: Could you sum up your top tips?
Kennedy: Number one is identifying what is important to measure and to track: with the goal of maximizing releases, court appearances, and public safety, asking what data can be lined up to make sure that’s happening. Second, once you figure out your key metrics, deciding what your system should look like. You need to reverse what the question usually is. It’s not what your system will allow you to do, it’s what do you need your system to do for you— how your system should work and operate. You need to identify the resources you are going to need to create that system. Most importantly, you need to use the data to assess your decisions and your results. You must have outcome metrics to report back to decisionmakers, so they are comfortable and encouraged to make evidence-based decisions.