Implementing and Enhancing Pretrial Reform
The current system of bail in most U.S. jurisdictions is fundamentally incapable of doing the job we expect from it. It is dangerous, outdated, unfair and expensive, costing taxpayers more than $9 billion each year without doing enough to protect public safety. In many jurisdictions, the decision to release or detain defendants pending trial is based almost exclusively on the criminal charge(s) and the suspect's ability to meet financial conditions. The focus on money as a mechanism for pretrial release means defendants’ often are not properly screened for more rational measures of public safety. Those who pose a danger to public safety can simply purchase their freedom while those who cannot afford money bail remain in jail, regardless of risk for pretrial misconduct, or presumption of innocence. (See the Pretrial Justice Institute, http://www.pretrial.org).
A key function of a pretrial program is to provide information to aid the court in determining a defendant’s risk to public safety and likelihood to appear in court if released pending trial. Jurisdictions must use an objective, validated risk assessment to score defendants' risk for pretrial misconduct if released pending trial. This risk assessment should be used to inform the decision to release or detain a defendant pretrial, and under what conditions. This system delivers on the purpose of our bail system – to protect public safety and assure appearance in court.
Offenders who are determined to be at a lower risk for pretrial misconduct can be supervised and monitored by pretrial services upon release by the court, through methods such as reporting regularly, undergoing drug or alcohol testing or treatment, or electronic monitoring, when appropriate. Such a system delivers on the purpose of our bail system: to protect public safety and assure appearance in court. Reducing the number of pretrial detainees in jails or the length of their stay can conserve considerable resources and allow the jail to meet other public safety needs.
Defendants found to pose the lowest risk of failing to appear or being rearrested can most often be released on their own promise to return to court with a substantial probability of staying out of trouble. This group performs best when reminded of upcoming court dates, without excessive supervision or monitoring which research shows produces poor outcomes and wastes resources.
Those who demonstrate a medium risk of failing to appear or being rearrested may be released with conditions of supervision such as travel/contact restrictions, electronic monitoring, drug testing, and checking in with a supervision agent. Basing the pretrial release decision on risk rather than financial means allows low- and medium- risk individuals, presumed innocent, to return their families , job s and communities while awaiting the outcome of their case without undue risk to public safety.
For those who pose the highest risk of pretrial failure, jurisdictions should maintain the ability to detain them without bail through statute — as opposed to the setting of high financial release conditions that they many defendants in this category are able to meet.
Pretrial Implementation Guide
A cooperative effort of the Public Welfare Foundation and National Criminal Justice association, the National Center for Justice Planning website contains a pretrial implementation guide for justice planners and policymakers of all levels of government. This includes:
- A policy guide that outlines the information and data needed to implement and evaluation pretrial programs, and strategies for promoting implementation;
- An overview of the legal foundation and historical framework for pretrial reform;
- Key questions to consider when mapping pretrial decision-making in your state;
- Links to national standards;
- Resources for working with data, data systems, and research partners;
- Performance, outcome and mission-critical measures;
- Sample pretrial risk assessment instruments, manuals, and validation studies;
- Information about the Laura and John Arnold Foundation’s development of a universal risk assessment;
- Sample assessments of pretrial supervision, monitoring, and diversion programs;
- Potential challenges to implementations;
- Implementation toolkits;
- A directory of national training and technical assistance providers; and
- An extensive list of online resources, organized by topic.