Assessing Risk in Pretrial Settings

Millicent Shaw Phipps: Welcome to this DV RISC podcast series on the use of intimate-partner violence risk assessments and models in different settings. Today’s podcast episode is focused on assessing risk pretrial. My name is Millicent Shaw Phipps, and I’m the legal director of Ujima, Inc. I’ll be your host for today’s episode. I am joined by three guest speakers today, John Wilkinson, Shira Burns, and Tara Patet.

John F. Wilkinson is an attorney advisor with AEquitas, the prosecutor’s resource on violence against women, and a former assistant Commonwealth’s attorney in Fredericksburg, Virginia. As an attorney advisor, he presents on trial strategy, legal analysis and policy, and ethical issues related to violence against women at the local, state, national, and international level.

Shira Burns was a specialized domestic violence, sexual-assault prosecutor in Maine for about 10 years before being appointed executive director of the Maine Prosecutors Association in 2022. In her time as a domestic-violence prosecutor, she was the director of the Domestic Violence Unit, and led statewide trainings for multidisciplinary teams on how to investigate and prosecute domestic-violence cases.

Tara Patet is a supervising prosecutor with the City Attorney’s Office in St. Paul, Minnesota, where she oversees the Domestic Abuse Crimes Against Persons Division. She’s been a prosecutor for 29 years, specializing in domestic violence and elder-abuse cases. Tara has prosecuted misdemeanor and felony level cases as part of a joint Special Victims Unit focusing on high-risk domestic violence and crimes perpetrated against elders and vulnerable adults.

Welcome everyone, we are going to begin by having a broad discussion on IPV risk assessments and prosecutors from the national TA perspective. John, how can IPV risk assessments be used pretrial, and what decision-making can they inform?

John Wilkinson: Hey, Millicent, thanks for that question. I do think IPV risk assessments are super important for prosecutors to be aware of. They don’t just factor into the things that we do, they are designed to help us keep our victims safer. It doesn’t mean that I’ll be doing it as a prosecutor or that my office will necessarily be doing it, but I want to make sure somebody in my jurisdiction is doing this, so there’s an eye toward that victim’s safety. And you gather a lot of really important information about victim safety when you’re engaged in risk assessments. But prosecutors can benefit from safety assessments, risk assessments or danger assessments, because that information can help us inform decision-making.

So it helps inform me about how dangerous a situation this particular victim is in. How dangerous is the abuser in this situation? Do we need to take certain steps, extra steps that we might not take in a typical case, where things flow routinely through our system a little bit, and there’s an arraignment, and then there’s a bond set and some arguments made and things like that, and they might be fairly routine and we just do them based on the information that we have? Often really, just about the defendant, the accused and their criminal history. And in domestic violence or intimate-partner violence, we don’t always have a ton of information about their prior history other than what’s on the record. And so if they haven’t been charged before, even though there’s a long history of domestic violence, if they have been charged but the case didn’t go forward, which is common in domestic violence, we might not have a good picture about how dangerous the situation is.

So I like getting that information and then making a more informed argument about what conditions are necessary, what level of bond is necessary in a particular case, and how we can best keep that victim safe while the case is pending. I think we often fall into a trap of thinking that in a domestic-abuse situation, this person is really only dangerous to this one victim. And that’s not true. Intimate-partner violence is connected to all sorts of other violence. There’s mass-tragedy events, there’s workplace violence, things that happen that are all associated with that. So I don’t want to make the mistake of thinking, “Oh, it’s just these two that are involved. And if we just keep this one person safe, everything’s going to be fine.” The community could be at risk too. So the more information that I have, the better decision-making I’ll be able to engage in, I might use it at bond.

And when I say use it, I’m talking about the information that I gather, I don’t know that I would necessarily say, “Well, we did this danger assessment,” and I hold up to the court what was done there. I’m just going to share the information that I have to say why this individual is at risk, and why we think certain measures need to be in place, or why a certain level of bond needs to be in place. It’s also helpful, I’m told from advocates who engage in risk assessment, that it alerts a victim who might not be thinking about how much danger they’re in, about how much danger they could be in, that this is their everyday life, but when you start talking about it individually and engaging in this safety planning, they recognize, “Oh, I didn’t think about how much danger I’m in.” And so that’s helpful because then a victim is thinking more about how they can keep themselves safe.

So for things like bond decisions, for things like plea offers, it can really help inform me to make better decisions, and work better with my victim when they’ve shared this information, so that I’m incorporating what their concerns are and the information that they’ve shared into my decision-making. So it promotes a little bit of victim autonomy, I think as well, because they’ve shared information with us, and I’m responding to the information that they’ve shared. So I guess in a nutshell, those are the things I would think about when we’re talking about danger assessments and how we can use them in the pretrial setting.

Millicent Shaw Phipps: What trends are you seeing in the field around the use of IPV risk assessments by prosecutors?

John Wilkinson: So traditionally, I think prosecutors have been involved in risk assessments when other agencies have conducted them. And when I’m talking about risk assessments, it’s a broad umbrella term, or at least I’m using it that way, because there are distinctions, but I’m using them, risk assessments, danger assessments, lethality assessments as one umbrella term interchangeably. But anyway, I’ve seen offices using these assessments when they’ve been done by other agencies, typically an advocacy agency in their jurisdiction that is working specifically to keep their victims safer. But we might end up with some of that information as well, even though there’s confidentiality, advocacy organizations wouldn’t share them directly with us, but sometimes we learn about that information because they’ve been talking to the victim about it, and the victim might share it with us.Also many police officers at the scene of a domestic-violence incident will engage in lethality assessment to gain information about how much danger is that victim in right now, and connect them with services right away. That tool that they are using is turned over to us as prosecutors as part of the police report. And so that is something that we might end up sharing in discovery with the defense, but it is another way that prosecutor’s offices have come into contact with this information and this instrument that gathers information about the victim’s safety and the level of danger or the risk of lethality that they’re facing.

So those are a couple of the ways that we are seeing it. Some offices are exploring the idea of doing these assessments in their office themselves with victims, and they’ll gain that information, and then they can use it in the same pretrial ways that we’ve thought of before. That information could also potentially be used later in, say, a sentencing hearing, where we’re talking to a judge about, “Look, you’ve now found this individual guilty. There’s other information that maybe didn’t come into the case in chief, or even pretrial, but we want to reiterate this now because we feel like the court should take some special steps in sentencing based on this information.” So when we would use it, we wouldn’t exactly talk specifically about a score or something like that on an assessment, but just again, talk about the information that should be highlighted, that should be of concern to the court when they’re either setting bond or maybe setting a sentencing.

Tara Patet: I want to just echo what John said earlier about prosecutors being more willing to not only use risk assessments, but engage in their own risk assessing. In St. Paul, we’ve really learned that not only are we wanting to be involved in that, but we also want to be really careful to share that information with everyone throughout the criminal justice process that we would be engaging with, whether that’s pretrial services, of course the bench when we’re making bail arguments and sentencing arguments, or sharing the information we have about risk and lethality with probation when they’re doing their pre- sentence investigation, we’re sharing the information with both system and community advocates. And really, all being aware of the need to connect the dots across the criminal justice system as we engage with this victim and throughout the process.

John Wilkinson: Tara, it’s such a great point that you made, and it reminds me, sometimes as prosecutors, we might be the last one to interact with the victim prior to trial. And victim safety isn’t a static thing, it changes over time. And so prosecutors might be in a good position to ask at that new time, closer to trial, “Hey, has anything changed? Is there any update? We’ve learned information that the defendant has since been released. Has he been in contact?” Things like that. But it’s great, that information sharing, and then thinking about the timing of when these assessments are done. It’s not a one-and-done thing, it’s a thing that you might be engaging in on an ongoing basis, and we are someone who sees that person later in the system sometimes, when things have changed.

Tara Patet: I wanted to just add that we also know that throughout the criminal justice process, and particularly as we’re getting closer to trial, that risk is often increasing. And so the more we can do to educate victims on what that behavior might look like, and to know that we as a system want to hear when they’re experiencing increased intimidation and manipulation, those are things that may not be criminal on their face, but are things that we want to know about. And so we will, to your point, John, be continuing to gain information about risk and lethality all the way up through trial and even through sentencing.

Millicent Shaw Phipps: Are there any concerns with using an IPV risk assessment pretrial, especially in a bail, bond setting? For example, risk assessments, are they considered work product, or will they be scrutinized by the defense? Is there a potential for bias John, how can these concerns be managed?

John Wilkinson: That’s a great question, Millicent. I think there are concerns, and people should be using these carefully. And if you’re working in a collaborative way, a coordinated community response is a great example of working collaboratively, you can get help from your advocacy community, both your system-based and your community-based advocates to make sure that we’re using this information appropriately and we’re not putting victims at risk when we’re engaging in this safety measure. So when I think about intimate-partner violence, I think the accused and the victim know everything about each other. So information that the victim may have, the accused probably has too, but the accused may not know that that victim has shared that information with us. And so sometimes the information is, maybe the accused has threatened to kill the victim and kill himself. And things like that, I just don’t want to have a trigger situation where the information that they learn has been shared is a trigger for them. So we do have to be careful how we use that information, how we collect it, and the specifics that we share.

So there’s also an issue related to discovery. If the police have done a risk assessment, or if my office has done it, will it have to be shared? You mentioned attorney work product, and you’re really going to have to look at the laws of your jurisdiction. There probably is a good argument that if your office, the prosecutor’s office has created an assessment and filled out the assessment with the victim, that that could be attorney work product. However, if the victim makes a statement during that assessment phase that is somehow exculpatory, I think that’s going to have to be turned over. And the defense could make a strong argument that, “Well, it’s not just that one statement. You need to tell us everything that the victim told you.” And so I don’t want to put victims at risk or invade victim privacy in that way if we don’t have to. If the police have done it, we’re going to have to turn that over, that’s going to be discoverable too.

The thing that we might want to think about is, prior to turning it over, do we need to engage in some specific safety planning for that victim based on the information that we’re going to share with the defense? I can’t delay discovery too much. I don’t have to turn things over immediately upon receipt, but I do have to make sure that the defense gets it, and gets it timely, so that they have an opportunity to prepare their defense, but do we need to just engage in a little bit of safety planning before I turn that over? So we’re in possession of some sensitive information, and so we want to act responsibly with it. Often you can make arguments in court based on information from the public record, that’s contained in either police reports or prior-case files, or information that came out at a prior trial or hearing, a bond hearing. So we might be able to do those things in court, make those arguments without using information that we gained from a risk assessment. But if we’re going to use information from the risk assessment, let’s make sure that our victim is as safe as possible and we don’t unnecessarily put them at further risk.

Millicent Shaw Phipps: Okay. For a point of clarification, is there potential for bias if some risk assessments focus on unemployment and criminal history?

John Wilkinson: Yeah. I do know that unemployment is typically seen as a risk enhancer, if someone is employed, it’s a risk reducer. And so that can be helpful to know that information. Obviously there could be other outside factors that affect employment that may have nothing to do with someone’s risk level. The only other caveat I think about in those situations is where employment is a risk reducer, it might depend on the employment. And I just think about police officers who are intimate-partner abusers, where their identity is so tied into their job that this report of violence is a threat to their job, and that could actually enhance the risk or the incidents of manipulation or intimidation used against that particular victim.

The other thing is, these are individual factors. Some factors really do indicate an increased risk, the presence of a firearm, strangulation, things like that. And so we do want to focus carefully on those, but we really want to take all the information as a whole and consider everything that we hear, not just isolate one or two pieces of information. And these are tools that are meant to be predictive. They’re just not perfect tools, but we still just are better off when we have more information that informs how we move forward.

Shira Burns: And John, this is Shira, and I’ll chime in about the criminal history in regard to risk assessments. The ODARA, the Ontario Domestic Assault Risk Assessment that we use in Maine does factor in criminal history. Now, we know in our criminal justice system, there is an overrepresentation of certain populations, and we do need to be aware of that. And all prosecutors should have training on that, they should have training on implicit bias and take that into account. But when we’re looking at the criminal history as scored in ODARA, it’s very specific criminal history that is asked for. And what we do know is that it’s validated and that it does show recidivism rates. So I think you counterbalance the two, it’s like you said, you use the information that you have, but that doesn’t mean you stop listening and getting guidance from your other trainings that you’ve had.

Millicent Shaw Phipps: Thank you so much for addressing how those concerns can be managed. Now, John, at AEquitas, what common technical-assistance questions do you receive around prosecutors wanting to utilize IPV risk assessments?

John Wilkinson: I think the number one TA request we’ve gotten has been related to the discoverability of risk assessments by prosecutors when they receive them, typically from police officers who’ve engaged in a lethality assessment of some sort. And again, I just think I can deal with those discovery issues, this is information that the defendant already knows, so there’s no surprises that are coming. The only issue that I think of is that they may not be aware that the victim has shared this information with police or prosecutors. So I think of that safety aspect, but worrying about sharing that information that has been shared, that that defendant already knows, I don’t think is as big of risk as people tend to think it is. It’s something that they already know about, and we’re just letting them know, “Hey, we know about it too.”

Often in discovery, depending on how well we’ve done our investigation and how much we’ve documented, what we have listened to, whether it’s jail phone calls, body-worn-camera footage, things like that, sharing this information can be encouraging a plea, it can get people to plead guilty in these cases when you have all that information at the ready and it’s shared with the defense. So we don’t do trial by ambush and we don’t hide the ball, but that’s what I think we get our number one TA request about, is sharing that information.

Millicent Shaw Phipps: Thank you for providing that national technical-assistance-provider perspective. We’re now going to move and have a more practical-example discussion from Shira and Tara who will let us know how they are using risk assessments from the site level. So can you both describe how you’ve been utilizing an IPV risk assessment during pretrial?

Shira Burns: In Maine, as I said, we are using ODARA, which does evaluate recidivism. So I do want to differentiate that from any lethality assessments, but this really is a recidivism tool. Specifically, it’s how likely the defendant is to re-offend against their current or future partners in the next five years that will come to the attention of the police. So we’re actually mandated in our laws to use it in certain ways. First, law enforcement has to convey the results, the ODARA score, to any bail commissioners and the district attorney’s office. The bail commissioner has to make a good-faith effort to obtain the results of the ODARA before setting any bail. And that includes a bail amount, it includes any conditions that the defendant would be on if released. Also any judicial officer, and that’s any of your judges, your justices, they have to take into account the ODARA score when setting the bail. And again, that could be, should there be a no-contact order, no access to firearms, even if firearms weren’t used in the underlying crime, and also the cash amount of bail.

In practice that’s not governed by statute. As John said, prosecutors all the time use it to formulate plea offers. If you have a really high ODARA score, which shows there’s going to be a high percentage that the defendant is going to assault this victim or a future victim in the next five years, we most likely are going to be looking for an offer that has more safety planning around the victim or anybody that this defendant may come in contact with. So maybe a longer probation term, keeping the no-access-to-firearms prohibition on for a longer amount of time. It also helps prioritize entry into different programs. And this may be prioritization into different domestic-violence intervention programs. Maybe you have a domestic violence judicial monitoring program, something like that. So for us, the higher the ODARA score, we’re going to try to use that as one tool, one factor when taking into consideration how to prioritize somebody into these different programs.

It also is a great way to talk to a victim regarding the reasoning behind a plea offer. And I think John touched upon this, is that victim advocates can use it as a tool to talk about the danger that this defendant may possess. And we also use that, we have a score, and we tell them the score, what the score means, and then the reasoning behind the plea offer, that we took that score into reasoning of why we have this. We also see our community-based advocates using it too. So I think Tara touched upon sharing the score, sharing your risk assessment with all of your community partners.

So even after pretrial, we’ll use it at sentencing, which is post-conviction, but we’ll absolutely use the score at sentencing and why we need to hold the defendant incarcerated longer, maybe on probation longer, because again, the likelihood of recidivism. And also we can use it with our jails and our prisons regarding eligibility for participation in certain programs that they have. And maybe it’s even used for parole. We have something called the Community Confinement Monitoring Program, so defendants can get released earlier, but the jail has to take into consideration the ODARA score. Again, one factor out of many, but it’s just all good information that stakeholders should be utilizing to understanding the risk for not only that victim, but other victims.

Millicent Shaw Phipps: Tara?

Tara Patet: Thank you. In St. Paul, we have the St. Paul Blueprint for Safety, which is an approach to domestic-violence interventions that first and foremost really responds to risk and lethality in any case. One of the biggest pieces that came from the Blueprint for Safety is that our law enforcement, as a way of assessing risk and context of violence, ask the Blueprint for Safety questions at the scene of any domestic-related offense. And that could be either intimate-partner violence or family violence, anything that falls within that umbrella of domestic violence as we consider it in Minnesota. And there are seven questions. And the first one is, “Do you think he or she will seriously injure or kill you or your children? Why or why not? How frequently and seriously does he / she intimidate, threaten, or assault you? Is it getting worse? Is it getting better?” I won’t read through the entire list, but that goes all the way up through questions about firearms, whether the person is known to have access to a firearm, and is there a firearm at that location? And the answers to those questions are written in the police report in a narrative form. And so we don’t use a scored type of tool like the ODARA.

The ODARA is used by some partners, I believe our pretrial services uses a shortened tool similar to the ODARA, and our probation department uses one in terms of assessing what kind of programming might be appropriate for that offender, but the answers to those Blueprint questions are included. When an attorney who’s screening a case for charges is looking at the answers to the Blueprint questions, we are looking for research-based risk factors such as the use of strangulation, the use of threats to kill, threats of suicide, the use of weapons, sexual violence. Some of those really high indicators of lethality are things that we’re really watching for. If someone is presenting with three or more of those risk factors, we are flagging that person as high risk in our case, and that would attach to that offender so we’re able to track risk and we’re also able to track it by offender. So if someone is being flagged as high risk in one case, they’re also going to be flagged as high risk throughout any other future prosecutions. Even if they come into the office on a non-domestic-violence-related firearms charge, for example, or a theft, we are going to know who this person is.

So I think one of the key distinguishing factors is really that we don’t have a number that gets attached to risk, it’s really about sharing information. And as I indicated earlier, we are using this information throughout the case. We’re using it to determine whether we’re going to charge or not. If it’s a case that’s really on the line in terms of provability, is this a case that we want to push the envelope on and really press towards prosecution because of higher risk?

We’re using it at the bail hearing to determine whether bail is appropriate, or whether we want to ask for a conditional release, or even in OR in certain circumstances. We’re using it to have conversations about safety with the victim, we’re using it for help in determining at pretrial what kind of plea negotiations we want to engage in, what kind of offer we want to make in the case. We’re sending the information to probation once there is a plea to determine what’s appropriate for programming. And of course we’re using that at sentencing.

And so throughout the case we are not only looking at those Blueprint questions, but we’re adding to the information that we’re compiling about risk. We might be getting information from a prior police report, we may be getting information directly from the victim throughout the case of things that happen after the case was filed, but before trial, for example. We may get information from an affidavit for a protective order, we may be looking at prior pre-sentence investigations. So it’s really about compiling information we know about risk and lethality into one place and having that front and center in the case. So it’s driving what kind of intervention we want to have both with a victim and in terms of outcomes for that offender.

If a person comes in as lower risk, and I hesitate to even use that phrase because the reality is we never have a crystal ball. We know that someone can go from being completely off the system’s radar to homicide, and we know people can sometimes have a real serious criminal history or domestic-violence history and never get to that lethality point. But when someone comes and they’re not showing heightened risk, they may qualify for different types of alternative prosecution. We have a program called the Domestic Violence Early Resolution Program for people who clearly appear to be first-time offenders, not just based on first time charges, but someone for whom all of the risk indicators aren’t flagging. So for them, they may qualify for a stay of adjudication or something like that.

We’re of course also weighing this with victim input on what they’d like to see as the result of a case. And generally, if risk is lower, victim autonomy in terms of what the outcome’s going to be for the prosecution is high. As risk gets higher though, we know that victims are often subjected to manipulation and threats and intimidation. And so sometimes we struggle to take that information from victims at face value, and have to consider heightened risk. For example, we may be asking for a no-contact order in a case, even when a victim is saying that they don’t want that protective order. Those are tough decisions to make because it’s so important to be trauma-informed. One really important part of that is making victims feel like they have a real sense of autonomy in the case. But that’s a challenge for prosecutors, because often if a victim is saying they don’t want the case to go forward, that may mean she’s at increased risk and she’s getting threatened to say such a thing. So really tough decisions, and we use these lethality factors and the information that we get about risk to inform how we respond.

Millicent Shaw Phipps: Now, what’s the history behind the selection and implementation of these assessments by your office? Did you consider any others? And who are your partners?

Shira Burns: So in Maine, over 10 years ago now, the Maine Commission on Domestic and Sexual Assault conducted a study on various domestic-violence risk assessment tools n existence. And they really narrowed it down to ODARA, first because of the ease of use. It didn’t need to be administered by a clinician, and it takes approximately 10 minutes to complete, and it can be administered by law enforcement in the field during a victim interview. We also found out it’s highly predictive, the predictive validity was higher than any other tool that was in circulation that did not require clinical training to administer. And also the efficacy of the tool had been cross-validated in numerous additional research studies. So all that was taken into account to narrow down to ODARA.

So a subcommittee which consisted of frontline and leadership from both law enforcement, prosecutors. It included our domestic-violence coalition, pretrial organizations, probation, actually a key partner was the director of our Criminal Justice Academy, and all of these people spent about a year communicating with users of ODARA in other states and other countries. I think it was New Zealand, Canada, before preparing a report to the full commission. The commission approved the recommendation that ODARA be utilized in Maine, and that was presented to the legislature to be codified in statute. Now, the language that we use in our statute doesn’t reference ODARA, but it specifically says, “A validated evidence-based domestic-violence risk assessment recommended by the commission and approved by various stakeholders.” So in the end, if we ever needed a change, if research was showing us something else, we can change, but we have a process already now in place on how to pick what risk assessment we’re doing. But I will say it was a very collaborative approach from day one to get all the buy-in from the stakeholders.

Tara Patet: So in St. Paul, we had a very similar process. Before we developed the Blueprint for Safety in partnership with Praxis International, we used the safety audit process to assess our domestic-violence response in St. Paul and identify gaps. And for us, the biggest gap that was identified was the lack of coordination between organizations. Risk was being considered, risk was being asked about, but it was not being shared. And what often happens is that you may have, for example, a domestic-violence-related homicide in your community. And after that homicide happens, the media comes out and they’re able to show all these points where the system had information about what was going on in that situation, and wonders why we didn’t do more. And looking at that and learning from that history, both in our jurisdiction and in others, we thought about, “How can we connect those dots before something like that happens?”

So we really looked hard at how we were sharing information, what information we could share, what barriers were getting in the way, and we examined that throughout the criminal justice process. And through that, we came up with the Blueprint for Safety. Our partners are 911 dispatch, patrol officers, investigators, really the entire St. Paul police department, the Ramsey County Sheriff’s Department, both city and county prosecutors, the bench. That’s a really important one, they were a partner in all of this, and deciding, “Yes, we are willing to consider risk and lethality. We want information on risk and lethality. We know that it makes our decisions better.” Both system and community advocates, of course, have a vital role in all of this, probation and pretrial supervision. So now with the Blueprint for Safety, we all capture, document, act on and share information about risk and lethality throughout the criminal justice process and beyond. And then importantly, all are educated not only on how to gather the information and what to gather, but how to use it in a way that doesn’t compromise victim safety and helps us get the best outcomes on offenders that we’re able to do.

Millicent Shaw Phipps: Can you both describe how you’ve been able to manage any challenges that have come up regarding victim safety and confidentiality?

Shira Burns: Well, as John stated before, our number one focus should be victim safety. And we know victims that are getting ready to leave their abuser or have just left their abuser are at heightened risk for homicide. So we do need to take this into consideration. So ODARA is 13 questions, we have utilized it in a way to just make it part of the conversation when law enforcement are in the field. So we’re trying to make it so it’s not so specific, in that a defendant can look and say, “Oh, you told the police officer this,” based on this question, but more routine as part of the conversation, which we know has inherent risk in general for that victim. Most of the answers to the questions from ODARA are derived from criminal history or familial status, about how many kids reside in the house? And does the victim have a child from a previous relationship? Are the children living in the residence?

So some of the questions, law enforcement can get it from other places, and it’s not so victim-centered in the sense that they’re the ones who gave us the information. However, when we do have an ODARA score, when we’re presenting it to a bail commissioner or at a bail hearing where the defendant is, we try to focus on the score and the meaning of the score, and not the individual questions. We may not be highlighting, “Well, when the officer asked the victim ‘is she scared for future assaults’ she said yes.” That may have an inherent risk to that victim. So if we can actually focus on the ODARA score and the meaning behind it, meaning what’s the recidivism rate for this defendant, I think it puts less focus on the victim and we keep the focus on the defendant.

Regarding confidentiality though, that’s a little harder, and John did talk about this, ODARA is utilized by law enforcement, turned over to prosecution. So in their police report, the questions that they ask are going to be intertwined in the report, and they will have the ODARA scoresheet, that is all turned over to defense, and that is part of our Brady obligations. But we can always do continued safety planning for the victim, work with our partners in the advocacy field to make sure we can surround this victim with whatever she or he needs in the moment.

Tara Patet: And in St. Paul we have many of the same challenges. Of course, with regard to confidentiality, one of the most important things for us is having cross-training and making sure we’re all understanding not only what we can and can’t share and why, but also understanding the implications of sharing information. So as Shira mentioned, if an advocate or anyone shares information with me about risk that is related to the case, likely it’s something that I have to turn over to the defense. And so making sure that everyone knows that and is well-trained in what they should and shouldn’t disclose to us is really an important part of our cross-training. In terms of victim-safety issues, one of the challenges with the way we do our risk assessments is the fact that when we talk about risk on the record, we really have to be careful that we’re not inadvertently putting a victim at increased risk because we’re saying something, like, “Well, the victim said that the defendant, for example, possesses firearms in the home.” Doing that could absolutely put a victim at increased risk.

So we’re training prosecutors, when they’re making these arguments, just changing the language around it, “Further investigation revealed that there are firearms in the home, there’s prior use of strangulation in this relationship,” things like that. The judges know that we all have to be really cognizant of not inadvertently putting victims at increased risk. So generally our bench is pretty cooperative in that regard. If someone is really pressing for more information, we may ask to approach the bench off the record and just be really careful about what we’re putting in open court and in front of the defendant.

Millicent Shaw Phipps: Thank you both for discussing some of the challenges regarding victim safety and confidentiality. I’m hoping that you can take a few moments to tell us about some of the benefits of ODARA and the Blueprint, and some of the general overall challenges that you have found, as well as ways that you’ve worked to overcome those challenges.

Shira Burns: Yes, we’ve seen many benefits of ODARA, and I think we all touched upon those risk assessment tools in general, but some other benefits, specifically ODARA, is having something as concrete as a number and what the number actually means. If anybody’s in the criminal justice system, we usually talk about it being a very gray system, rarely are things black and white. And with ODARA, we have an actual score and the meaning of the score. So I can go up to a judge and say, “The defendant’s ODARA score is seven, and that means that there’s a 74% chance that he’s going to commit another assault against his current partner or a future partner within an average of about five years.” That’s about as concrete as we get in the legal field. And what we’ve also seen as a great benefit is judicial officers are using the ODARA score to base their decisions. It’s not just a tool that we are talking about internally with prosecutors or their community partners, but our judges are actually utilizing the information given to them to make their decisions.

Now, as much as I’m an advocate of ODARA, there’s obviously challenges with any risk assessment. One challenge we face is continued training. And this is even harder during periods of high turnover. So every time you have a turnover, you need to properly train your judicial officers, your prosecutors, your law enforcement, your advocates, because the tool doesn’t work if people aren’t knowledgeable about how to use it and what it means. So we’re always going to have the ongoing challenge of keeping up with the training needs.

What we first saw when we implemented ODARA too, is that the individual questions were being picked apart by defense. And I touched upon one of the questions earlier being, does the victim have a child with somebody besides the defendant? And so defense was narrowing down on these questions that talked about really the familial status, and that we shouldn’t be holding that against the defendant, that the victim had a child with somebody else. But how we overcame this challenge is that we kept going that this is an evidence-based validated tool that shows recidivism rate, and we look at it as a whole, not just the one individual question, but the 13 questions and what the score shows us.

And one other challenge we faced early on, and obviously when people are new using it, is it being scored wrong, and I do find ODARA, it is an easy tool, but you do have to use it to know it. So when an officer is new, it may lead to an inaccurate score that somebody can catch. So usually a police officer will write some kind of supplement report saying, “Question 13, I scored it a one. It should have been a zero. And this is why I accidentally did that. I now know it should only be scored.” And so we have them file these supplement reports, and you can see that goes down once the officer is trained more and uses the tool more often.

Tara Patet: So in St. Paul, I think the benefit that we have of having risk available in more of a narrative form than in a scored tool is that it really allows for not only individualized justice, but individualized response to victims. Having said that, the challenge of course is that it’s very subjective. And so it’s really only as good as the training that any individual receives on how to ask questions about risk, how to talk about risk in a way that’s trauma-informed and doesn’t compromise victim safety. So I think, because of its subjectivity, it’s really open for a range of responses, whereas something like a scored system is maybe a little bit more concrete. So there are definitely benefits and challenges in doing things in more of a narrative way.

Millicent Shaw Phipps: You both touched on this a little bit with your previous answers, but can you tell us any other measures that may have been put in place to ensure that ODARA and Blueprint are being implemented to fidelity?

Shira Burns: Yeah, there’s checks and balances. So ODARA, since it is a score, law enforcement scores, the prosecution is a check and balance on the score, defense counsel is a check and balance on the prosecution, and then obviously you have the judge too. So there’s a lot of people looking at that score to make sure it’s scored accurately. Now, regarding ODARA generally though, to make sure it is the tool we want to show accurate recidivism rates, we have been working with the University of Arizona. They’ve been doing a study on predictive value of ODARA with Maine data over the last five years. So at the halfway mark of the study, the percentages were holding true for the recidivism rates. So whatever the ODARA score is, it’s linked to recidivism rate, and those rates were accurate. They’re wrapping up their five-year study now, and the analysts for the whole study, preliminary to what we are hearing, are the same positive results that we heard at the halfway point, that the predictive values are holding true. We know outside studies will continue to look at different risk assessment tools, since we put in statute that we just need to use a risk assessment tool, we’ll continue to utilize ODARA as long as its recidivism rates hold true to the percentages we’re given.

Tara Patet: As John pointed out much earlier in this podcast, we know that risk and lethality is very fluid, we know that so many things can change throughout the pendency of a case. It can change right after a case gets charged, it can change as we’re approaching trial, it can change even after sentencing. As we all continue to add to the narrative on risk and lethality in any particular situation, we’re able to adjust our response accordingly. And so I think that’s one of the real benefits of having this ongoing look at risk and lethality in a case.

In terms of how we’re maintaining this work, as I mentioned earlier, it’s really a challenge making sure that everybody has the most up-to-date training on how to ask about risk, how to use risk throughout the case. And so that’s something that we really are constantly doing. We meet as a collaborative group every month to talk about training needs within the criminal justice community. Our community advocates are really good at doing training for the bench, to make sure that they’re trained on the Blueprint for Safety. We have a lot of written materials, so that when someone new comes in, we’re able to provide that information right away, even before they have a live training. So I think that’s our biggest way that we’re keeping this work current and we’re making sure that it’s being utilized in the way that it was intended.

Millicent Shaw Phipps: Before I wrap up the podcast, I would just like to get a few closing thoughts from all three of you. So first I was going to ask, Shira and Tara, what advice do you have for other prosecutors that are thinking of using the assessments?

Shira Burns: I will say one of the biggest things is to be collaborative. You’ve got to work with your stakeholders, everybody has different perspectives, and if you really want a safety tool for the victim, everybody’s going to have different input. So from the start, day one, be collaborative, and know their usefulness. Like I said, ODARA is not a lethality predictor, we do recidivism rate. So make sure that whatever risk assessment tool you’re using, what is it telling you, what is the usefulness of that specific risk assessment? And any tool you use, always think of it as one tool in your toolbox. You have to still account for everything else you’ve learned, all your training, other information you’re being told. So, because ODARA is a recidivism rate, I still want to take into consideration lethality factors with strangulation use, the presence of firearms, stalking, sexual assaults. I don’t stop thinking about those just because I have an ODARA number.

And then I’d say lastly, if you’re going to use a risk assessment tool, go all in. Don’t just put your toes in, because if you do it, you want to do it right. So if you want to implement something, you want to have the good foundation of the training that’s needed behind it, the knowledge base. And I will say there’s a knowledge base out there, nobody should be reinventing the wheel, it’s going to be out there. Just listening to this podcast, hopefully everybody feels like they’re more knowledgeable and has a resource to go to for follow-up questions. But if you’re going to do this, go all in with a great foundation so it actually can be a successful tool and help with offender accountability and victim safety.

Tara Patet: And I would echo absolutely everything that Shira just said. I would say first and foremost, use some kind of tool. Whatever you do, make sure that you are using some kind of, whether it’s a narrative or a scored tool, that you’re looking carefully at risk and lethality. Any prosecution, it’s absolutely critical that you have an assessment of context, of where this falls in terms of risk and lethality. And so, use it. I would say any tool you use is only going to be as good as the people administering and using it. So make sure that you’re constantly training those who are going to be using it, those who are going to be administering it, and those who are going to be talking about it in your cases. If collectively within the criminal justice system, we can send a victim messages of hope and accountability, and a message that lets them know we care about their safety, I think that we’re doing good work. It’s really important that victims understand that and that they trust the system. And I think when they understand that we want to know more about just what happened in this case, we want to know more about what’s been happening in your life, we’re going to do a better job for victims, and we’re going to have better outcomes in our cases.

Millicent Shaw Phipps: Thank you. John, do you have any final thoughts?

John Wilkinson: Well, I think Shira and Tara have said it all, so there’s not much for me to add. I agree with everything they said. If you’re in a jurisdiction and you don’t know if someone is engaging in safety planning, engaging in risk assessment, whether it’s recidivism-based or lethality-based, just start asking. And I think, as they said, it’s a tool, it’s one tool. We have all sorts of things that we can do a better job on when it comes to responding to intimate-partner violence. Collaboration is key, thorough investigations, documentation, evidence-based prosecutions, this is a tool that plays into that. It’s one thing to collect this information, it’s another to share it appropriately and figure out how that’s done to promote victim safety at the same time. So I’m glad to echo what they said.

Millicent Shaw Phipps: Well, on behalf of the Center for Justice Innovation, Esperanza United, and Ujima, Inc, the three organizations that make up the Domestic Violence Resource for Increasing Safety and Connection, DV RISC, National Resource Center, I would like to thank the three of you for the informative information that you provided in this great discussion. I would like to thank the listeners who have decided to listen to the podcast. And please, if you need any technical assistance, prosecutors, please visit aeqitasresource.org for help. And if you’re interested in anything about technical assistance on IPV risk assessments, please visit the dvrisc.org website. Thank you all.