Many people agree that our criminal justice system relies too much on pretrial detention — keeping people in jail because they are assigned bail they can’t afford. Ideally, we could tell who is a flight risk and who is a danger to the community in some logical way and release those who are not.
Detaining people before trial goes against the legal assumption that people are innocent until proven guilty. There is also good reason to believe that bail is commonly assigned arbitrarily or in a racially biased way.
To overcome those problems, many jurisdictions are beginning to rely on pretrial risk assessment tools. According to researchers from the groups Media Mobilizing Project and MediaJustice, about a third of American counties are using these tools.
In determining whether the tools work, what we would like to see is less pretrial detention overall — and certainly less unnecessary detention of people who are not flight risks or dangers to the community. We would also like to see evidence of less racial disparities in pretrial release.
Do pretrial risk assessment tools serve to reduce the number of people jailed before trial? Maybe not. A recent report and database indicate that the use of pretrial risk assessment tools may drive down pretrial detention for a while, but that effect doesn’t appear to last. However, about two-thirds of jurisdictions weren’t keeping any records on whether the tools were having an effect.
The researchers collected data from over 1,000 counties in 46 states and the District of Columbia. They performed in-depth interviews with 38 pretrial services agencies and interviewed 18 others by email.
What they found was that only nine jurisdictions could show that the tool reduced pretrial detention. Since most jurisdictions weren’t keeping data, however, the researchers pointed out that pretrial incarceration rates have increased in several jurisdictions where the tools had been adopted.
In at least one state, the reason the pretrial assessment tools weren’t reducing incarceration rates was discernible. Kentucky made use of the tools mandatory in 2011 and saw an initial increase in pretrial releases. However, a law professor found last year that the rate of pretrial incarceration had returned to pre-2011 levels over three years. This was because judges were overruling the recommendation of the tools.
Kentucky’s tool recommends immediate release without bail in 90% of all cases. Judges only followed that recommendation 29% of the time.
Furthermore, the researchers were unable to find any connection between use of these tools and the reduction in racial disparities in bail.
Pretrial risk assessment tools are not a panacea. The best way to get affordable bail may still be the old-fashioned way: get a lawyer.