Bail Reform Essay: Pretrial Detention and Risk Assessment

The issue of pretrial detention is a section of a more significant national discussion on criminal justice reform. In recent years, several American jurisdictions have implemented initiatives to reform bail (Baughman, 2019). Cities and states have changed the criteria for evaluating bail, removed money bail, and enacted new state laws. Moreover, Koepke and Robinson (2018) assert that pretrial detention policies and practices have played a role in the state’s incarceration rates, caused significant problems for local jail administration, resulted in inappropriate budgets, and brought up significant issues about class, race,  and the constitutional impact of incarcerating individuals because they are poor to pay a money bond.

Furthermore, legal scholars have written about the concern, emphasizing such a system’s disparities and legal challenges. Therefore, the money bail system requires significant reform. Calaway and Kinsley’s (2017) research emphasizes the pretrial risk assessment tool as a substantial bail reform approach that has experienced significant consideration and scholarship. However, the approach may not be able to effectively enhance reformist goals of minimizing incarceration and improving the equity of the bail system. Therefore, comprehensive technological solutions like decision-making frameworks must be implemented using pretrial risk assessment instruments to resolve the system’s inequities.

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Bail Reform Strategies

The pretrial release has been recommended to track a defendant’s conduct while waiting for the criminal case’s outcome. Pretrial service programs employ a range of techniques to achieve their objectives of securing the defendant’s court appearance and safeguarding the public. These include court pretrial services branches reminding defendants of their court dates via text messages and emails and more structured interaction with pretrial defendants (Smith, 2018). According to research, contacting a defendant to inform them of their court dates increases appearance rates. According to one study, automated call reminders decreased failure-to-appear rates by 41%. Pretrial services can also include more in-person interactions, such as regular in-person visits with a pretrial services officer, home visits, phone reporting, and tracking of a defendant’s criminal contacts. Studies have indicated that increased pretrial contact lowers failure rates to appear and re-arrest.

According to Calaway and Kinsley (2017), the following are possible alternatives to pretrial detention: Electronic monitoring has also been proposed as an alternative to pretrial detention. Electronic monitoring enables real-time tracking of a defendant’s location and discourages a defendant from failing to show up for a court hearing. However, studies on electronic monitoring show that it will not raise court appearance rates. Concerns about the legality of the prevalent utilization of electronic monitoring, particularly the associated confidentiality and due process issues, have also been expressed.

Using actuarial risk assessment tools is the reform initiative to substitute monetary bail that has received the most attention (Smith, 2018). Actuarial risk assessment instruments produce risk scores grounded on statistical evaluation. These tools evaluate a defendant’s risk based on risk aspects integrated into a statistical formula that utilizes data to forecast potential results. Various tools have been established, as has a foundation of social science research centred on predictive risk assessment. Some variables may depend on accessible information from a defendant’s criminal background and the present charge. The defendant must also be questioned about their work experience, historical background of alcohol abuse and drug, and place of residence. For instance, the Ohio Risk Assessment System was developed based on a study done at the University of Cincinnati as part of an extensive initiative to forecast recidivism at various stages of the criminal justice system, such as pretrial. Research indicates that recidivism was correlated with seven factors, including employment stability, substance abuse, and criminal history.

Various risk assessment tools have been investigated and used in several other nations. Additionally, the Public Safety Assessment assesses nine variables influencing flight risk and recidivism. According to Public Safety Assessment researchers, interview-dependent variables such as drug use, employment, and place of residence do not enhance the tool’s prediction performance. The research that led to the development of this risk assessment tool enables courts to make pretrial release decisions based on the device’s predictive accuracy. Using these systems eliminates more subjective standards from decision-making, such as financial status, but enables the court to make pretrial detention judgements using an evidence-based methodology. In a pilot study performed in Kentucky using the Public Safety Assessment, researchers discovered that 70% of defendants were freed, and the frequency of pretrial re-arrest was lowered by 15%. According to the study, the risk assessment tool utilized predicted risk with a high level of accuracy.

Recommendations

Pretrial risk assessment instruments cannot be relied on to further reformist objectives of minimizing incarceration and improving the equity of the bail system (Smith, 2018). Subsequently, moving to risk-based bail will not decrease incarceration. Where risk assessments are still used, they must be enhanced in structure and management. The most critical impacts of today’s bail reforms may not be the ones intended by reformers. The pretrial risk assessment tool is the subject of extensive research. However, the purpose of pretrial risk assessment tools is only to categorize risk (Baughman, 2019). The use and significance of decision-making frameworks will be the subject of a more substantive discussion as more research and experimentation are conducted.

According to Calaway and Kinsley’s (2017) study, considering the appropriate circumstances and sets of guidelines and frameworks for making decisions could be a powerful tool for incarceration. For instance, decision-making frameworks that presume discharge on bail, the minor harsh circumstances of discharge for the large majority of defendants, would substantially alleviate the concerns —that consistently overestimating risk will, consequently, subject a considerable number of defendants to counterproductive circumstances of the release. Therefore, most decision-making frameworks are recommended.

A decision-making framework may suggest certain circumstances of release—or not—for a defendant’s risk level. Still, judges are primarily allowed to impose any situations they see fit.   However, the necessity for community supervision does not necessarily disappear if judicial discretion is maintained. Decision-making framework results from active community feedback and discussion from advocates (Calaway & Kinsley, 2017). As a result, judges should agree with the recommendations of a decision-making framework as a rule rather than an exception.

The way to raise concurrence rates is to make the decision-making framework judgmental rather than advisory in discharging specific defendants with increasing evidence. First, a system could detect that the judge immediately deviated from the suggested course of action. Second, the judge may be required to explain in written form why they deviated from the recommendation of the decision-making framework. This explanation should preferably be made available in a machine-readable layout. In such a system, jurisdictions may be uniquely equipped to guarantee that judges adhere to the recommendations of a decision-making framework but also lock in de-carceral outcomes. A system like this would provide policymakers and researchers with helpful information such as how frequently judges deviate from the recommendations, for what kinds of defendants they deviate, and the reasons they deviate. Calaway and Kinsley’s (2017) research suggests that the Current bail reformers can learn from the past to avoid restricting judicial discretion with technocratic fixes, especially in the histories of bail reform and sentencing reform.

Conclusion

The earlier bail reform movement has several teachings for the current movement. Still, the primary point is simple: reformers should acknowledge nothing other than a comprehensive reform of the pretrial system. Comprehensive reforms that eliminate commercial bail and reduce pretrial incarceration are highly probable to last since they produce better outcomes, such as fewer individuals imprisoned, fewer taxpayer funds used on jailing innocent individuals, lower rates of offences perpetrated by defendants released pretrial, and increased court-appearance rates. Comprehensive reforms are also more inclined to be kept because their effectiveness is not contingent on judges agreeing to implement them: they need judges to discharge all but the most threatening defendants.

Suppose local and state governments adopt simple reforms such as risk assessments in the position of cash bail and do not see favourable results; in that case, lawmakers may conclude that bail reform is not valuable and revert to cash bail. Comprehensive reforms may necessitate more time and money than simple solutions like risk assessments. Still, they are viable, as Washington, D.C. has demonstrated for centuries and as states like Kentucky are illustrating presently. While lawmakers and others may advocate for politically convenient reforms such as risk assessments, the transformation must continue to advocate for reform measures that will result in long-term pretrial justice.       

References

Baughman, S. B. (2019). Dividing Bail Reform. Iowa Law Review, 105, 947. https://dc.law.utah.edu/cgi/viewcontent.cgi?article=1159&context=scholarship

Calaway, W. R., & Kinsley, J. M. (2017). Rethinking bail reform. University of Richmond Law Review, 52, 795. https://lawreview.richmond.edu/files/2018/10/CalKin-AC-542.pdf

Koepke, J. L., & Robinson, D. G. (2018). Danger ahead: Risk assessment and the future of bail reform. Washington Law Review, 93(4), 1725. https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=4079&context=wlr

Smith, R. (2018). Condemned to Repeat History? Why the Last Movement for Bail Reform Failed, and How This One Can Succeed. Georgetown Journal on Poverty Law and Policy, XXV(3). https://www.law.georgetown.edu/poverty-journal/wp-content/uploads/sites/25/2019/02/25-3-Condemned-to-Repeat-History.pdf