Respecting the Rights of Defendants

Just Policy Blog Guest Post as as part of Pretrial Justice Institute and Justice Policy Institute Bail Month 2013

By Lauren-Brooke Eisen

Across the country, too many jurisdictions still depend on money bail to determine which defendants can be released pretrial. Forcing defendants to face financial loss if they flee, proponents insist, is essential to ensure that they will return to court. Those who cannot afford bail remain in jail, a reality that disproportionally impacts low-income communities. This practice has significantly increased our overreliance on incarceration, contributing to an exponential growth in our prison population over the past three decades. More than 2 million Americans are behind bars, 20 percent of those pretrial, and more than 65 million adults – a quarter of the nation’s adult population – have criminal records.

In 1966, the United States Bail Reform Act established the rationale of bail: to guarantee a defendant’s court appearance. The Act emphasized that when possible, the law favors release pending trial. The law established a presumption of release by the least restrictive conditions with an emphasis on non-monetary terms of bail. Two decades later, the Bail ReformAct of 1984 permitted judges to consider the danger a defendant posed to the community as a factor in making bail decisions.

Five decades of research has consistently shown that pretrial detention increases post-conviction incarceration. These studies show that defendants detained in jail while awaiting trial plead guilty more often, are convicted more frequently, are sentenced to prison at a greater rate, and receive harsher sentences than those who are released awaiting trial or case disposition.

Shifting away from a system based on money bail and toward one focused on assessing risk, would both respect the rights of defendants and increase public safety by reducing recidivism. The good news is that more jurisdictions are using evidence-based pretrial risk assessment instruments that can help move the system in that direction. Pretrial risk assessment instruments help identify the likelihood that a defendant will fail to appear in court, and the danger that he or she poses to their community while pending trial. These empirically validated tools allow criminal justice decision makers to make the best use of their resources. In recent decades, the use of risk assessments has become widespread across the criminal justice system. Risk assessments are now frequently used at every stage in the criminal justice system, from police making arrest decisions, to prosecutors and judges making sentencing recommendations, to parole agencies making release decisions.

Decades of research shows that most pretrial defendants can be safely released on their own recognizance. One prominent study by researchers VanNostrand and Keebler revealed that of all criminal defendants processed by federal Pretrial Services between October 1, 2001 and September 30, 2007, on average only 7 percent of released defendants failed to appear in court. Other studies show that appearance rates increase when pretrial risk assessments are instituted along with court reminder notifications and adequate pretrial supervision. For defendants who are objectively assessed to present moderate or high rates of risk, court-ordered supervision is a highly effective means of achieving the twin purposes of bail: ensuring appearance in court and maintaining public safety.

Pretrial risk assessment instruments can also save jurisdictions money. Federal, state, and local governments spend about $75 billion annually on corrections, the large majority of which goes towards incarceration. The average cost of county pretrial services supervision is less than $10 a day, while the cost to house someone in jail each day can often run more than $100. Almost two-thirds of all county jail inmates are defendants awaiting trial – at an annual cost of roughly nine billion taxpayer dollars – making the investment in proven pretrial risk assessment tools a worthwhile one.

Lauren-Brooke is Counsel at the Brennan Center for Justice focusing on improving the criminal justice process through data-driven policy and legal reforms.

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