The Empirical Case for Pretrial Risk Assessment Instruments

Pretrial risk assessment instruments are used in many jurisdictions to inform decisions regarding pretrial release and conditions. Many are concerned that the use of pretrial risk assessment instruments may be contributing to worsened, not improved, pretrial outcomes, including increased rates of pretrial detention and exacerbated racial disparities in pretrial decisions. These concerns have led prominent organizations to reverse their position on the role of pretrial risk assessment instruments in pretrial system change. Reforms that centered on their use have been rolled back or have failed to be implemented in the first place. However, the scientific evidence behind these concerns is lacking. Instead, the findings of rigorous research show that the results of pretrial risk assessment instruments demonstrate good accuracy in predicting new criminal activity, including violent crime, during the pretrial period, even when there are differences between groups defined by race and ethnicity. Furthermore, the scientific evidence suggests they can be an effective strategy to help achieve pretrial system change, including reducing pretrial detention for people of color and white people, alike, when their results are actually used to inform decision-making. In this article, we review the scientific evidence in relation to three primary critiques of pretrial risk assessment instruments, namely, that their results have poor accuracy and are racially biased and that their use increases pretrial detention rates. We also provide recommendations for addressing these critiques to ensure that their use supports, rather than detracts from, the goals of pretrial reform and articulates an agenda for future research.

Beyond Cash Bail: Public Health, Risk Assessment, and California Senate Bill 10

The detrimental effects of incarceration on physical and mental health are widely acknowledged. However, 76% of the United States jail population is awaiting trial without having been convicted of a crime (Sawyer and Wagner 2020). This is driven by the monetary bail system, which the state of California moved to abolish by passing the 2018 California Money Bail Reform Act (Senate Bill 10, hereafter SB 10). SB 10 proposes the use of algorithmically driven risk assessment tools to determine pretrial release. However, actuarial risk assessments are not calibrated to California’s diverse demography and are insufficient to determine which defendants pose flight or public safety risks. SB 10 is predicted to perpetuate similar socioeconomic and racial disparities as the current system, while failing to decrease pretrial detention. We recommend opposing SB 10 in favor of pretrial release for most misdemeanor and nonviolent defendants. The funding currently allocated for pretrial detainment should be redirected toward evidence-based and restorative pretrial supervision practices through the enactment of new bail-reform legislation by the state of California. Increasing the use of diversion programs, which redirect defendants to the appropriate mental health or substance abuse programs, also presents opportunities to restore treatment to the jurisdiction of public health rather than criminal justice. Transitioning from a reliance on pretrial detention to pretrial services will mitigate the collateral effects of incarceration while improving public health, public safety, and substantially reducing the cost of incarceration.

Perceptions of Pretrial Risk Assessment: An Examination Across Role in the Initial Pretrial Release Decision

Pretrial risk assessments are used to inform pretrial release decisions by judicial officers and criminal justice entities. Existing research indicates that negative perceptions of risk assessment can interfere with adherence to the tool. Although perception plays an important role in the implementation of pretrial risk assessment, little is known about what those involved in the initial pretrial release decision—including pretrial officers, judges, prosecutors, and defense attorneys—think about this practice. This study utilized a mixed-methods approach to examine the perceptions of pretrial risk assessment by practitioners and stakeholders across roles in the system. Furthermore, themes relevant to the perceived value of pretrial risk assessment are identified that pertain to the face validity of risk items and the reliability of self-reported information.

Jail By Another Name: ICE Detention of Immigrant Criminal Defendants on Pretrial Release

This Article assesses the legality of an alarming practice: Immigration and Customs Enforcement (ICE) routinely detains noncitizen criminal defendants soon after they have been released on bail, depriving them of their court-ordered freedom. Since the District of Oregon’s decision in United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167 (D. Or. 2012), a growing group of federal courts has held that when ICE detains federal criminal defendants released under the Bail Reform Act (BRA), it violates their BRA rights. These courts have ordered that the government either free the defendants from ICE custody or dismiss their criminal charges. This Article agrees with and expands on this interpretation of the BRA. Focusing on the BRA’s plain text and legislative history, it argues that the BRA confers a “right to remain released” pending trial, which ICE detention infringes. It then debunks the leading counterarguments to this BRA interpretation. It also explores constitutional arguments for the right to remain released and their implications for federal and state criminal defendants.

The Immediate Consequences of Federal Pretrial Detention

Unlike the cash-bail regimes that are prevalent in state courts, federal courts rarely use money bail as a condition of pretrial release. Nonetheless, this article presents evidence that pretrial release influences case outcomes for federal defendants. Using case data spanning 71 federal district courts, the article suggests that pretrial release reduces a defendant’s sentence and increases the probability that they will receive a sentence below the recommended sentencing range. Pretrial release also appears to lessen the probability that a defendant will receive a mandatory minimum sentence when one is charged. The analysis exploits variation in magistrate judges’ propensities to release defendants pending trial, which allows magistrate judge leniency to serve as an instrumental variable for pretrial release. The article also provides suggestive evidence that pretrial release affects case outcomes through two channels: first, by giving defendants the opportunity to present mitigating evidence at sentencing and second, by making it easier for defendants to earn a sentencing reduction by providing assistance to the government.