A San Mateo County Civil Grand Jury 2000-2001 investigation has determined that the San Mateo County Bar Association (SMCBA) has not properly conducted its administration of the Release on Own Recognizance (O.R.) program. Further, the San Mateo County Bar Association's O.R. policy committee and O.R. staff have failed to meet contractual obligations in the implementation of policies and procedures intended to compel court appearances in lieu of bail. The grand jury also determined that O.R. standard operating procedures must improve to meet the needs of the San Mateo County Superior Court in assessing the suitability of pre-trial release of qualified defendants. The county must ensure that the O.R. program's measures of effectiveness validate the expenditure of public funds for this program.

The grand jury recommends the O.R. program facilitate the following changes:

• Include the nature of the pending charge in the recommendations for pre-trail release.
• Require documentation to verify residency.
• Prohibit staff from chauffeuring defendants to court.
• Report only unexcused failure to appear (FTA) rates.
• Include re-arrest statistics in its annual report.
• Institute annual review of the operations manual.

The grand jury recommends that the O.R. policy committee meet semi-annually, publish the results of its meetings, and augment its membership with a private citizen appointee.

The San Mateo County Release on Own Recognizance (O.R.) program is a pre-trial release service intended to compel court appearances in lieu of bail. It provides verified background information for consideration by a judge in determining the suitability of pre-trial release and issues annual reports containing failure to appear (FTA) rates as a measure of effectiveness. The program's responsibilities include electronic monitoring (since 1996) and victim notification (since 1997). The program is administered by the San Mateo County Bar Association under an agreement with San Mateo County. The current term of the contract is July 1, 1996, to and including June 30, 2001. The program's current budget allocation is $2.25 million. The program garnered national recognition as a model pre-trial release program in 1989 and 1992. All components of the county's criminal justice system value this program.

The San Mateo County Bar Association's O.R. program is administered according to the procedures and practices authorized by the O.R. policy committee. The policy committee is composed of representatives of the Sheriff's Office, Municipal and Superior Courts, District Attorney's Office, Probation Department, the Police Chiefs Association, and Bar Association members. The written agreement with the county requires the O.R. policy committee to meet at least twice each year and whenever there is a request to modify O.R. policies. The policy committee did not meet in 1997. The committee met only once in 1998, not at all in 1999, and only once toward the end of 2000. The policy committee does not consider public input in the process of developing O.R. release criteria or program operating procedures. It reserves the exclusive right to change program policy. The responsibility for implementing O.R. policies is delegated to the O.R. staff.

In its role of providing verified background information for consideration by a judge in determining the suitability of pre-trial release, an O.R. staff member gathers information about an arrestee's work and residence history during the booking interview. These references are later verified by telephone. The defendant is not required to show documentary evidence of residency. The O.R. staff assigns point values for specific data gathered and verified prior to making a recommendation for pre-trial release. The point scale used to assess the suitability for pre-trial release does not include the nature of the offense being considered for charges by the San Mateo County District Attorney.

O.R. pre-trial release is an alternative to the financially secured release of defendants who choose to post bail. In either case, the defendant must promise to appear as ordered by the court. According to a Crime Victims United of California study, defendants released on their own recognizance were "almost twice as likely to have failed to appear for a scheduled court appearance" when compared to defendants who chose to post a surety bond. Defendants who arrange for a financially secured release will forfeit their bail following an unexcused failure to appear. The court clerk's office records such forfeitures.

The county's contract with SMCBA requires that the O.R. program maintain a court appearance rate of at least 75% for all defendants. The current contract states that the O.R. program shall provide statistics on the services it furnishes and will provide other statistical information when requested by the county. In 1993, a county manager's office memorandum amended the previous contract to permit adjustment of FTA rates; no such adjustment is authorized under the terms of the current contract. However, the O.R. program continues to report net FTA rates that are adjusted or lowered by crediting defendants who self-surrender after failing to appear in court. This does not reflect actual appearance rate. Defendants who either self-surrender or are arrested after failing to appear must not be counted as an averted FTA by the O.R. program.

The O.R. staff is encouraged to take a personal interest in their clients and do whatever it takes to get their clients to court. As an example, some O.R. caseworkers have picked up and driven defendants to court appearances.

The program administrator was unable to determine when the current O.R. operations manual was published. It does not include procedures for administration of the electronic monitoring and victim notification programs. The manual is under revision and is scheduled for release in March 2001.
A September 1998 O.R. program report to the county manager claimed the increase in pre-trial jail population should be attributed to a continuing decrease in the O.R. release rate by superior court judges. The O.R. program administrator has since met with a committee of judges and lawyers. O.R. program representatives and judges, as distinguished from the policy committee, met six times from September 1999 through October 2000 to discuss this trend and the criteria used by the O.R. staff to make pre-trial release recommendations. The O.R. administrator has submitted the judges' recommendations for changes to pre-trial release criteria to the O.R. policy committee for consideration.

All components of the county's criminal justice system value the pre-trial release service provided to the county by the San Mateo County Bar Association. While acknowledging the O.R. program to be generally effective in accomplishing its purpose, there are concerns regarding several aspects of the program. These concerns cross the spectrum of responsibilities and duties of those who implement this program.

Of primary concern to the grand jury is the lack of solid measurement of program success. The O.R. staff's reporting of FTA rates and calculation of the program's measure of effectiveness is both inadequate and inaccurate. The O.R. staff adjusts FTA rates in its annual report. FTA is just that…a defendant's failure to appear. This is a failure to obey the lawful order of a superior court judge to appear in court on a specific prearranged date and time. The O.R. program reports FTA rates only for defendants released through its program but does not compare those rates to FTA rates for financially secured pre-trial releases.

Requiring additional accountability is defendant home/work information. This information is crucial to the recommendation "scoring" of the O.R. program. Yet only phone verification of this information is done. According to the program administrator, there is no further verification by the O.R. staff members.

The current point scale for assessing the suitability for pre-trial release should be changed as it does not include the nature of the offense being considered for formal charges. An O.R. recommendation that does not include the nature of the booking charges is an incomplete recommendation. Superior court judges are currently required to consider the booking charges after the O.R. staff has made its recommendation. A judge's assessment of flight risk and threat to public safety should be made following the O.R. staff's analysis of a defendant's past criminal history, a defendant's history with the O.R. program, pending charges, and the booking charges. The O.R. program's policy committee should develop a list of crimes for which release on own recognizance is not recommended. This would improve the value of the program.

The policy committee has failed to satisfy its contractual obligation to meet at least twice each year for some time. As a result of this failure, the O.R. staff has developed a program change without the endorsement of the policy committee. After meeting with the grand jury in March 2000, the staff began monitoring re-arrest statistics for inclusion in annual reports. This procedural change was made without involvement of the policy committee. Previous policy committees have failed to recognize and include public input in the administration of the O.R. program. The grand jury recommends the policy committee should communicate to the public its goals and objectives.

The grand jury has several concerns regarding O.R. staff. We find that:

• The personnel training program is inadequate for training qualified staff.
• The O.R. operations manual does not include clear delineation of duties.
• The O.R. director has implemented an "on the job" training regimen that lacks standardized training procedures and evaluation of new hires.
• There have been cases of O.R. staff members driving defendants to court. This should not be allowed as the liability of exposing any employee under county contract to the risks associated with driving defendants to court are greater than the benefits of avoiding an FTA.