Pretrial: Nuts and Bolts 2.0

What are the working components or rather the nuts and bolts of pretrial? The basic working components of pretrial are the use of a validated pretrial risk assessment to measure failure to appear and re-arrest during the pretrial phase and utilize pretrial supervision to manage that risk. The pretrial phase is from the point arrest through disposition. The advancement of research in this area has enabled the field to advance in evidence-based pretrial.

Until recently, for most of the country a validated pretrial risk assessment was used for the purposes of setting a financial bail. Today, there is a depth of research that supports releases based on a pretrial risk assessment in combination with judicial discretion where there is limited use or elimination of monetary bond at the front end of the system has better pretrial outcomes. This is commonly referred to risk-based releases which is judicial decision making informed by a pretrial risk assessment. In some jurisdictions, low levels of risk with a non-violent charge allows for a person to be released shortly after an arrest without seeing a judge

There is a sophistication of how pretrial is functioning today. Although basics are still the same, the purpose in which pretrial functions with data and evidence-based pretrial is growing.

Primary components of pretrial

The two primary components of pretrial have been diversion and services. Pretrial diversion is for individuals identified shortly after arrest to be diverted from the traditional criminal justice process. This often entails the individual to participate in programming and, once completed, the charge will be dismissed.

More advanced steps are being taken to reduce the necessity of an arrest and not charging a person. Diversion 2.0 includes something called ‘pre-charge’ diversion. Pre-charge diversion is for low level charges and typically for those with minimal or no criminal history. The benefit of pre-charge diversion is that no formal charges are filed through the court, providing the person completes the programming at the discretion of the prosecutor. In some jurisdictions, no additional criminal involvement for a period of time is the threshold. In the age of having access to court records at our fingertips via the internet, a person that does not have a formal charge with a case number available on a public criminal justice information system will have one less barrier in the future.

The second component is pretrial services. The role of pretrial services is to measure and manage the risk of people assigned to pretrial supervision. To measure that risk, jurisdictions are taking a closer look at the pretrial risk assessments they are using to measure pretrial failure. The most commonly used measurements of pretrial failure today are failure to appear, new criminal activity, and if the new alleged offense was a violent charge. Once the outcome measures are known, a grid or matrix is utilized for release recommendations to manage the risk of pretrial failure. A matrix or grid system is based on the risk principle which is simply targeting resources toward the people with increased risk of failure. Conversely, allocating minimal to no resources for those individuals that present minimal risk.

Currently, pretrial service agencies are also taking a more progressive look at their process and not waiting for an initial appearance to present release recommendations. With the advancement of collecting outcome measures and the use of similar pretrial risk assessments, we know that the majority of people released within a short period of time from the point of arrest appear for court and are not arrested for new alleged criminal activity.

With this knowledge, courts are mapping their decision points for release and identifying earlier points of release without an initial court appearance. This type of decision making is leading to more people being released on non-financial conditions. For those with a higher level of risk, JMI is working with stakeholders on accepting more risk pretrial and releasing on non-financial conditions.

With the advancement of validation data, more people are being released with the highest risk levels. The validation has proven that even at the higher levels of risk, a significant portion of people return to court and are not arrested pending their case. In the past, pretrial service agencies have not made recommendations for release or recommended financial conditions to higher-risk individuals. Most agencies are moving away from making financial recommendations for all levels and for the highest level of risk maximum conditions of supervision.

Pretrial service agencies are also moving from a one-size-fits-all to an evidence-based approach toward supervision and adopting the risk principle. JMI works with pretrial agencies on targeting their resources toward the people with moderate and higher levels of risk and leaving the lower levels with court reminders only.

What is risk

“Risk” at the pretrial stage is the defendant’s likelihood to miss a scheduled court appearance or arrested for a new alleged crime pretrial. This definition conforms to Federal and state bail laws that define the purpose of bail as reasonably assuring court appearance and public safety.

Risk is inherent in bail decision-making. Bail grants a reasonable assurance of an individual’s return to court and public safety. The purpose of bail is not to eliminate any chance of failure, but to recognize it as “the price for our system of justice”[1] and to manage it in a way that promotes pretrial release and successful outcomes. But the presence of risk needn’t make bail decision-making a gamble. We can study risk, define it more accurately, gauge how likely it is to occur in our defendant populations, and, ultimately, learn how best to manage it.

The need to understand pretrial risk helped spur one of the past decade’s most important areas of criminal justice research. This work sought to identify the factors that predict the likelihood of a missed court date and new criminal activity pretrial. Based on this body of knowledge, practitioners know more about risk at the pretrial stage now than at any point during the bail reform era that began in the 1960s. We also know that risk is not as prevalent in most defendant populations as believed. Jurisdictions such as Washington, D.C., New Jersey, Allegheny County, and Cook County have achieved high rates of nonfinancial pretrial release while maintaining court appearance and non-rearrest rates of 90-95%.

The shift

States are moving to eliminating financial conditions of release.  One of the catalysts for the change was a 2013 study called The Hidden Costs of Pretrial Detention.[2] Using the State of Kentucky data, when low risk people were detained for even several days, their new criminal activity rate increased pre- and post-sentence.  Further investigation was completed on the lower-risk defendants and those that were detained more than 24 hours, specifically two to three days, were nearly 40% more likely to have alleged new criminal activity in comparison to defendants not held more than 24 hours.[3]  Similar research has been done in New York City regarding the unintended consequences of pretrial detention.[4] This research found “that being detained increases the probability of conviction by 13 percentage points for felony defendants. Although pretrial detention lowers the probability of rearrest while cases are being adjudicated, this reduction in criminal activity is mostly offset by an increase in recidivism within 2 years after disposition.”[5]

In addition, there still remains a significant racial disparity in pretrial detention in comparison with white defendants. In the New York City study “higher pretrial detention rates among minority defendants explain 40 percent of the black-white gap in rates of being sentenced to prison and 28 percent of the Hispanic-white gap.”[6]

Flipping the script

The way in which we present information to the stakeholders matters and pretrial practitioners are starting to present outcome measures differently.  In lieu of presenting outcome measures in terms of pretrial failure we are starting to present the successful outcome measure results.  For instance, the matrices and grids used for pretrial recommendations are traditionally populated with levels of supervision by the stakeholders from least restrictive release conditions to more intensive as the continuum of risk increases.  These decisions are made based on information from previous assessment validations and by presenting the pretrial outcome measures with the success rates the matrices are populated with far less intensive levels of supervision.  Presenting this information based on the success rates of outcome measures, stakeholders are able to visualize that people with higher levels of risk return to court and provide for a safer community.  For example, person with PSA outcome measure score of FTA 5 have an appearance rate of 65% meaning that people with an FTA score of 5 appear for court approximately 65% of the time without any missed court appearances.

 There is also an effort to step away from utilizing the terms, low, medium and high risk when referring to people in during the pretrial phase.  Specifically, with the term high risk, there are typically not many individuals that populate this space, and this level has approximately 55-65% court appearance rate and 45-55% public safety rate.  These outcome measure numbers will range depending on the resources available to mitigate risk but if released a high percentage will appear for court and not be re-arrested.  It should be noted that the serious charge at the time of arrest is not the only factor when calculating risk.  The charge itself is typically scored based on violent or non-violent, coupled with age, may elevate the pretrial assessment score.  When JMI is working with jurisdictions this is a critical area we educate on the outcomes for the higher levels of risk.   

[1] Stack v. Boyle 342 U.S. 1 (1951) at p. 8.

[2] Lowenkamp, C., VanNostrand, M., Holsinger, A. (2013). The Hidden Costs of Pretrial Detention. Houston, TX: Laura and John Arnold Foundation.

[3] Ibid.

[4] Emily Leslie and Nolan G. Pope, “The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from New York City Arraignments,” The Journal of Law and Economics 60, no. 3 (August 2017): 529-557.

[5] Ibid.

[6] Ibid.

Aimee WickmanPretrial: Nuts and Bolts 2.0