A recent editorial in The New York Times discusses the primary concern of policymakers in the wake of the Brown v. Plata decision: what is the best way to comply with the court order? California is searching for ways to ways to bring down its inmate population, and Governor Jerry Brown recently proposed the transfer of state prisoners to county prisons as one solution. However, this does not really decrease the incarcerated population – it just redistributes it. Some fresh ideas are in order.

In the Times editorial, Professor Shima Baradaran of Brigham Young University Law School advocates a new alternative that Gov. Brown may want to consider: reform the pretrial detention process. Professor Baradaran explains that approximately 500,000 of the 2.3 million prisoners in the United States are not convicts; they are accused persons awaiting trial. The University of Chicago estimates the average bail at around $19,000, while the average prisoner will only be willing to pay around $1000. Though some of these individuals will be convicted, a large sum of money is wasted on innocent people who do not have the funds to post bail. Moreover, research shows that people who remain in prison before trial tend to have longer prison sentences and are less frequently sentenced to probation in lieu of jail time.

Several jurisdictions have seen benefits from reforming pretrial detention. Miami-Dade County in Florida managed to chop defendant supervision costs from $20,000 per year (by incarceration) to a mere $400 per year (using GPS trackers, ankle bracelets, and house arrest). Interestingly, in a recent article on Slate.com, William Saletan suggested that the GPS monitoring and house of arrest of former IMF head Dominique Strauss-Kahn is a confinement model that might sensibly be applied to other persons awaiting trial. “Armed guards are expensive,” he wrote, “but GPS bracelets can be remotely monitored from a central location. They give courts a way of securing defendants that’s stronger than bail but less costly and onerous than jail. Thousands of defendants and parolees already wear them. The trick is to keep driving down the technology’s cost.”

Critics fear that pretrial release presents a threat to public safety, but with well-informed judges, this threat can be minimized. Clear trends exist to demonstrate which defendants pose public safety risks, and these trends may be analyzed to determine what kind of pretrial detention an accused person should receive. In a recent paper, Right On Crime’s Marc Levin discussed the success of these “Risk Assessment Instruments” in Texas and Wisconsin in both pretrial and post-trial release proceedings. Both states saw significant reductions in spending and reduced recidivism rates.