Justin Kollar
+ Your AuthorsArchive @JustinKollar Kauai County Prosecuting Attorney. Fair & Just Prosecutor. Boston U. & Suffolk U. Law. Pacific Century Fellows. NDAA board. Decarcerate. he/him/his. 215/617/808 Apr. 18, 2021 2 min read

Quick thread on criminal procedure.

On Kaua’i, anytime the police make an arrest and the person cannot post bail, a judge must find probable cause for the arrest within 48 hours. This involves an electronic review of what we call a “48 hour packet”.

It’s also called a JDPC (judicial determination of probable cause). It’s not a full or complete set of reports. It’s a simple statement of what is known at the time.

To ensure that we are doing our due diligence our policy requires that either I or my First Deputy review the packet and approve it. This applies to the most minor offense up to and including murder.

We read these because we want to make sure that the only people held in custody pretrial are folks who absolutely cannot be safely released into the community.

So many of the arrest packets I see follow this fact pattern:
-person going through mental health crisis (perhaps also involving a substance use problem)
-shows up someplace (hotel, gas station, emergency room)
-and makes a scene that upsets and/or scares people.

Our police here have basically one tool available to address the situation: arrest the person. And I’m not blaming the police for this; it’s literally the only thing we’ve given them the power to do to address it.

As a society. We had a LEAD (diversion with services, etc) program that would’ve given law enforcement some good alternatives but it lost funding when the pandemic hit. Not good.

This fact pattern repeats itself over and over again. We have to do better. We need to give first responders the resources and empowerment they need to get people the help they really need at the time they need it most.

And although this fact pattern is common, each person has different needs. We have to be flexible and adaptable and not rely on one-size-fits-all approaches that have led to our current mass incarceration situation.

Talk to your legislators and community leaders about this. Don’t let the only voices at the table be the ones calling for more and more punitive approaches to enforcement.

The upshot is that there is a lot that police and prosecutors can do before a case ever gets to court that can make huge differences in people’s lives.

You can follow @JustinKollar.


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