Pretrial Justice

Pretrial Justice

Over the past several years, LJAF has made a significant commitment to supporting innovation in the pretrial justice arena, specifically the bail reform movement. Working with partners in academia, the legal community, and jurisdictions across the country, LJAF has supported the use of data analytics to improve the process of decision making at the earliest part of the criminal justice process. The goal of these efforts is to reduce unnecessary pretrial detention while improving the rate of court appearances and enhancing public safety.

The decision whether to detain a defendant during the pretrial phase has far-reaching impact. Individuals held in jail stand to lose their jobs, suffer negative health effects, and experience disruption in their family lives. Detention decisions can also be viewed as impinging on the presumption of innocence and creating an incentive to forfeit the right to trial. Finally, the use of money bail to detain someone while awaiting trial accentuates the intersection between poverty and the operations of the criminal justice system.

Recognizing these larger challenges of pretrial justice, LJAF has primarily focused on the dynamics of the release decision itself. In many jurisdictions, police, prosecutors, and judges have little information about an individual defendant’s risk of pretrial misconduct – the risk of failure to return to court or be arrested for another crime. In some courts, the detention decision is made by reference to a fixed bail schedule that precludes any consideration of the circumstances of the individual defendant. This critical decision is often made in a subjective manner without the aid of objective metrics. As a result, in many jurisdictions, approximately half of the defendants determined by risk assessment instruments to be at high risk of non-appearance or pretrial crime are released before trial, often with minimal or no supervision, while significant numbers of low-risk, non-violent defendants are detained because they cannot make bail.

The signature contribution of LJAF to the larger pretrial reform movement has been the development of the Public Safety Assessment (PSA). Currently, only about 10 percent of courts use evidence-based risk-assessment instruments to help them decide whether to release, supervise, or detain defendants. The PSA was developed to address this shortfall. It was created using a database of over 1.5 million cases drawn from more than 300 U.S. jurisdictions. These data were analyzed to identify the factors that are the best predictors of whether a defendant will commit a new crime, commit a new violent crime, or fail to return to court. The result is an objective point system that requires fewer resources to implement than previous techniques. The PSA does not consider factors such as race, gender, level of education, socioeconomic status, and neighborhood.

Over 40 jurisdictions have either adopted the PSA or are engaged in implementation with LJAF technical assistance. These jurisdictions include the states of Arizona, Kentucky, and New Jersey, and three of the largest cities and two of the largest jail systems within those states. The early results are very promising, including reductions in the pretrial jail population, the rate of failures to appear, and the level of crime committed by those on pretrial release.

Over the coming years, LJAF will explore other dimensions of the Pretrial Justice domain. We hope to initiate research projects that will shed light on the basic operations of prosecutors’ offices so that elected prosecutors can build a foundation for evaluating effectiveness of various practices and policies. We also plan to evaluate the effectiveness of court initiatives under which prosecution is suspended pending a defendant’s successful participation in a diversion program. These efforts are gaining momentum with little research on their effectiveness.

LJAF hopes to support the robust pretrial justice reform movement now underway by developing objective, evidence-based tools, piloting and evaluating innovations, and performing foundational research on the effectiveness of risk assessment instruments and the impact of pretrial detention. Carrying out this agenda will require access to more data, additional research, a continued commitment from researchers, policymakers, and practitioners, a deliberately transparent approach, and a willingness to learn from both failure and success. The ultimate goal is to create a pretrial justice system that is fair, objective, and racially just system.