Advancing Legal and Evidence-based Pretrial Practices
The Pretrial Justice Center for Courts (PJCC) works closely with the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) to implement the 2013 CCJ Resolution endorsing the COSCA Policy Paper on Evidence-Based Pretrial Release. The Resolution recommends evidence-based risk assessment in setting pretrial release conditions and the presumptive use of non-financial release conditions consistent with risk assessments. PJCC provides information and tools, offers education and technical assistance, facilitates cross-state learning and collaboration, and promotes legal and evidence-based pretrial practices for courts across the country.
Overview
Many states, the District of Columbia, and the federal government have established a presumption that defendants charged with bailable offenses should be released without bond unless it is determined that the defendant poses a sufficient risk to require more restrictive conditions or detention.
However, many jurisdictions still apply bail schedules with pre-set amounts of money payments for particular offenses. They base pretrial release decisions on the payment of money as the primary condition, thus elevating the economic status of the defendant over risk assessments. This can lead to other disparities. For example, as people of color face disproportionately high rates of poverty, they are disproportionately likely to be incarcerated.
Many in the court community see the need to implement evidence-based practices for determining the pretrial release of criminal defendants, such as using assessments of the risk of flight or threat to public safety.
The benefits of this approach have been tested and validated. At the same time, the detrimental consequences of money-based pretrial release policies and subjective screening practices have also been examined and confirmed. Pretrial incarceration can significantly impact access to justice and fairness in the criminal justice system, public safety, and the costs of detention for local jails and taxpayers.
Bechtel et al (2012): Dispelling the Myths. What Policy Makers Need to Know About Pretrial Research. Pretrial Justice Institute.
Detrimental Effects of Pretrial Incarceration
Decades of research indicate that defendants held in pretrial detention have less favorable outcomes on several dimensions than those who are released (Phillips, 2007; Phillips, 2008). For instance, studies found that defendants experiencing pretrial incarceration have higher rates of:
- guilty pleas,
- convictions,
- sentences that include incarceration,
- longer periods of post-conviction incarceration, and
- higher rates of recidivism (see, for instance, Lowenkamp, VanNostrand, & Holsinger (2013), and Oleson et al. (2014).
Additionally, while many may eventually not be found guilty, they will nevertheless face the damaging effects of incarceration on their personal lives:
- loss of employment and income
- loss of housing
- childcare costs
- disintegrated relationships and family ties
Inability to Pay & Low Risk
Even relatively low bail amounts can result in low-income defendants remaining in detention for significant periods of time, as two studies of nonfelony cases in New York City indicated. In one study (Phillips 2007) 25% of defendants with bail set at $750 or less remained in detention for a week or longer, and nearly half of detained defendants served time in jail for the sole reason that they did not have the means to post bail. In the second study (Human Rights Watch 2010), defendants in 87% of cases with bail set at $1000 or less could not post bail at arraignment and remained in pretrial detention an average of 15.7 days.
Moreover, 71.1% of these defendants were charged with nonviolent, non-weapons-related crimes. A number of other studies have shown that many defendants in pretrial incarceration lack the financial resources to be released yet pose little threat to public safety or risk of flight.
Pretrial release systems that base release primarily on the ability to pay potentially reduce public safety due to the criminogenic effect of pretrial detention. Defendants who are detained pretrial have higher recidivism rates.
Ability to Pay Versus High Risk
Defendants with financial means who pose a higher risk to public safety are released while defendants posing far less risk who cannot pay the bail amount remain in detention.
Subjective Screening
Other threats to public safety are subjective screening devices and measures that have not been shown to be significantly associated with failure to appear or reoffending during pretrial release. On the other hand, actuarial risk assessments have been shown to be more effective in determining who is more likely to pose a threat to public safety than pre-set bail amounts based on the offense or other systems that rely on professional judgment or subjective screening devices.
The United States has the world’s fourth-highest rate of pretrial detention (158 per 100,000) (Open Society Foundation, 2010). There are around 460,000 people in jails across the country on any given day without having been convicted of a crime, as was estimated in 2018. While prior to 1993, approximately half of the people detained in jail were held pretrial, this number has grown to nearly two-thirds of the jail population (Vera Institute, 2017).
These high rates of pretrial detention have led to alarming increases in costs for counties and municipalities to build, maintain and staff jail facilities. The Hamilton Project (2018 ) estimates that pretrial detainees cost taxpayers about $11.7 billion each year.
The pervasive practice of requiring financial bonds for pretrial release has contributed to the rise in jail populations and the attendant costs of housing pretrial detainees (Open Society Foundation, 2010). Evidence-based risk assessment can save taxpayers and local government significant resources now applied to pretrial incarceration.