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Pretrial-Justice Reform: An Old Idea Gains New Momentum

| November 30, 2016

This commentary originally appeared at Real Clear Policy on November 30, 2016.

History has proven that it is much easier to diagnose a problem than to solve it. The pretrial-justice system is no exception.

In 1964, Attorney General Robert Kennedy said:

“Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But nonetheless, most of them must stay in jail because, to be blunt, they cannot afford to pay for their freedom.”

This remains true today. Just ask the family of Sandra Bland, a 28-year-old Texas woman who committed suicide in jail after being detained following a traffic stop in July 2015 and was unable to come up with $500, the typical 10 percent of a $5,000 bond.

More than a half century ago, Robert Kennedy spearheaded federal legislation to address this issue in federal proceedings. The law allowed money bail only when all other forms of conditions, such as pretrial supervision, would not address the defendant’s flight risk, and prohibited bail amounts beyond a defendant’s ability to pay. While the bill passed in 1966, it only affected federal cases. As a result, the problem Kennedy identified has continued to plague our pretrial-justice system at the state and local level, where the vast majority of cases are resolved.

However, one thing has changed during the many intervening decades: There is now, once again, momentum to make pretrial-justice reform a reality. Major changes to New Jersey’s bail system, approved by the state legislature and Governor Chris Christie, will take effect in January 2017, while New Mexico voters overwhelmingly approved a similar ballot measure on November 8. Many other states from Maryland to Texas appear poised to make major legislative changes over the next several months.

Fortunately, we now see a growing consensus that justice should not be a luxury but, rather, a guarantee for all Americans.

Scope of the Problem

More than 400,000 Americans in jail today must remain there until their cases are resolved, which can take months or even years. These individuals are legally innocent until proven guilty, and, indeed, 19 percent of these charges are never brought or get dismissed.

The pretrial-justice system seeks to ensure that individuals appear at all proceedings to answer for the conduct that led to their arrest and to prevent new crimes, particularly serious ones, during the intervening period. However, the ubiquity of pretrial detention effectively flips the traditional order of the justice system, in which the punishment occurs after conviction. In fact, in New York City, 46 percent of defendants who did not make bail were not sentenced to incarceration, with about half never convicted and the other half receiving a non-custodial sentence, such as probation.

Moreover, defendants detained pretrial are four times more likely to receive jail sentences and three times more likely to receive prison sentences than similar defendants who are released prior to trial. This isn’t surprising: It is harder to coordinate a legal defense while behind bars; a prosecutor has more leverage to secure a plea to his or her liking while the defendant is jailed; and once an individual obtains and succeeds in complying with pretrial supervision, the judge may be more likely to find him or her a suitable candidate for probation.

The cost to taxpayers of pretrial incarceration amounts to some $9 billion a year. There are also human costs. Research has found that, when held for two to three days, low-risk defendants have a nearly 40 percent greater likelihood of committing new crimes than comparable defendants held no more than 24 hours. This could be due to loss of employment, housing, and even family support during lengthy periods of pretrial incarceration.

Thus, the stakes are high, as is the potential for government to do more harm than good. For those concerned with limited government, individual liberty, public safety, and the burden on taxpayers, the implications of getting pretrial-justice policy right could not be clearer. While keeping the relatively small number of violent and dangerous individuals behind bars pending the resolution of their cases, we must not allow pretrial incarceration to grow in scope like so many other government programs.

Unlocking Solutions

To improve pretrial-justice policies, we need a holistic approach — a number of strategies that, taken together, ensure limited jail space and best prioritize taxpayer dollars to maximize both public safety and the constitutional rights of defendants.

1. Police Discretion. Comprehensive pretrial-justice reform does not assume everyone who is suspected of an offense must be brought to jail. Instead, policies should give police officers discretion to handle certain cases without arrest. For example, San Antonio’s 24-hour crisis center receives mentally ill individuals who commit minor offenses, such as trespassing, and stabilizes them far more cost-effectively than does jail time

In New York City, police exercise discretion by issuing 80,000 desk appearance tickets — 80,000 per year — in lieu of jail for offenses such as marijuana possession, driving with a suspended license, petty theft, and city code violations. A desk appearance ticket is an order to appear in court for an arraignment. If the arraignment was scheduled within 15 days, From 2003 to 2012, the failure to appear rate when the arraignment is scheduled within 15 days was only 4 percent, and a still modest 13 percent for arraignments within 16 to 30 days. (Of course, warrants are ultimately issued for no-shows.)

Florida has pioneered a civil citation program that was so successful when applied to juveniles that it has now been expanded to adults. The program allows police to opt for civil citations instead of arrests for petty theft and other minor misdemeanors. The defendants must then apologize, make restitution, and complete some type of privately operated community service or treatment program to avoid criminal charges. The most notable such case involved quarterback Jameis Winston who was cited for shoplifting crab legs from a supermarket. Florida’s civil citation program has achieved a 6.6 percent recidivism rate.

2. Risk and Needs Assessment. Another solution involves accurately assessing the risk of absconding or re-arrest for those newly jailed, particularly for violent offenses. Fortunately, there are now actuarial methods that can help determine this. These methods have been tested retrospectively to show that risk level designations correlate with failure to appear and re-arrest rates. Among the questions typically included are whether a person has prior arrests and convictions, prior failures to appear, and prior violent convictions.

Kentucky adopted such a pretrial risk assessment on a statewide basis in July 2013. Following its adoption, a greater percentage of defendants obtained release prior to trial, while, at the same time, new offenses by those released prior to trial dropped nearly 15 percent.

3. Bail Must Be Reasonable. Given that most jurisdictions in the United States use commercial bail as a method of pretrial release, it is important to ensure that bail amounts are not unreasonable. The U.S. Constitution and most state constitutions require such.

Indeed, the bail amount is often the crucial factor in determining whether a person can obtain release prior to his or her trial. A Bureau of Justice Statistics study found that about seven in 10 defendants secured release when bail was set at less than $5,000, but only one in 10 when bail was set at $100,000 or more.

By incorporating risk level and ability to pay — not just the type of offense — when setting bail, jurisdictions can ensure that jail space is prioritized for those who are dangerous, rather than those who are simply poor.

4. Timely Access to Counsel. If the accused lacks representation when bail and other pretrial conditions are determined, he or she is entirely at the mercy of the government (i.e., the prosecutor and the judge, who both work for the state). And prosecutors will often highlight facts that weigh in favor of keeping the accused in jail, as someone behind bars has little leverage in plea negotiations. Miami and Seattle are two jurisdictions that have developed models for addressing this problem by ensuring access to counsel within 24 hours after being arrested.

5. Improving Pretrial Supervision. Pretrial supervision is also a key piece of the puzzle. As with probation, the accused must regularly report to an officer during pretrial supervision. Increasingly, however, technologies, such as electronic monitoring and voice recognition, are making this process more efficient. Such developments should be encouraged and welcomed.

6. Limiting Use of Jail. The largest share of warrants in cities across the country are for unpaid fines related to traffic tickets and other misdemeanors for which jail is not possible unless the person fails to pay or respond. One example: a woman in Ferguson, Missouri who had a warrant for an unpaid overgrown lawn citation.

Fortunately, there are ways to minimize the need to use jails for such purposes. First, those with outstanding warrants for minor offenses should be encouraged to come forward voluntarily and then be given options, such as performing community service, if they are unable to pay. Second, for those who can pay, police should be permitted to accept credit card payments when they pull someone over who has an outstanding warrant, thereby allowing that person to avoid arrest.

Recent and Pending Reforms

New Jersey’s pretrial-justice reforms, scheduled to take effect on January 1, 2017, require that the decision to release a defendant prior to trial be based on a proven methodology for assessing risk of flight and re-arrest, rather than ability to pay. By the same token, the legislation allows courts to deny release to the small number of defendants who pose high risks of violence and flight, rather than relying on the prior practice of setting bail amounts of millions of dollars in the hopes the person is unable to meet it. Furthermore, the legislation guarantee a release decision be made within 48 hours after arrest. As a result of these reforms, one New Jersey county with roughly 300,000 people expects its jail population to drop by about 80 people per day.

New Mexico measure is similar. It expands authority to deny release for any amount of bail for the small number of dangerous pretrial defendants, while fostering the release of those determined not to pose threats but who lack the ability to pay. The fiscal note prepared by legislative staff suggests that the former provision will cost $967,000 and save $19 million.

Maryland is headed in a similar direction. After a state attorney general declared that Maryland’s bail system was likely unconstitutional, a body of judges known as the Standing Committee on Rules of Practice and Procedure of the Maryland Court of Appeals issued a set of reforms on November 18. These provisions are subject to public review for 30 days before being taken up by the Court of Appeals. As in New Jersey and New Mexico, the changes would mean that pretrial defendants who are low-risk for flight and re-arrest could be released without regard to ability to pay.

Finally, a November 2016 study by the Texas Judicial Council recommendedchanges that Texas lawmakers are expected to take up when they return in January 2017. More specifically, the Council recommended that the state implement an objective risk assessment that would calculate a defendant’s flight risk based on age, offense, other pending charges, prior misdemeanor and felony convictions, prior violent convictions, prior failures to appear in court, and prior sentences.

The Council concluded that taxpayers could save $250 million by changing state law to allow the release of  low-risk defendants who currently cannot afford bail, while also expanding judicial authority to hold the most dangerous defendants without bail. (Currently that provision applies only to those charged with capital murder.)

The Path Ahead

It has taken more than a half century, but pretrial-justice reform is now gaining currency among legislators, the judiciary, and voters. Perhaps the most compelling explanation for the recent surge in interest is the realization that while most policy choices involve significant trade-offs, pretrial-justice reform can lead to both enhanced public safety and reduced costs for taxpayers. We now have clear evidence that people who are not dangerous can become so after spending time in jail. So whether our primary motivation is to ensure equal treatment under the law or to obtain better outcomes for public safety and expenditures, the verdict is in: The time has finally come for pretrial-justice reform.

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MARC A. LEVIN is Right on Crime’s Policy Director, as well as the Director of the Center for Effective Justice at the Texas Public Policy Foundation.  Based in Austin, Texas, Levin is an attorney and an accomplished author on legal and public policy issues.  Levin served as a law clerk to Judge Will Garwood on the U.S. Court of Appeals for the Fifth Circuit and Staff Attorney at the Texas Supreme Court.  In 1999, he graduated with honors from the University of Texas with a B.A. in Plan II Honors and Government.  In 2002, Levin received his J.D. with honors from the University of Texas School of Law.  Levin’s articles on law and public policy have been featured in national and international media outlets that regularly turn to him for conservative analysis of states’ criminal justice challenges.

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