The State of Pretrial Detention

While under the common law judges presumed that most defendants would be released on bail before trial, now only some defendants are guaranteed pretrial release. Historically, due process and the presumption of innocence guaranteed criminal defendants the right to release before trial unless there was a serious risk of flight. The evolution of bail law has rendered this former guarantee meaningless. Now judges use various factors to determine release based on a prediction of whether the defendant is guilty and how dangerous he will be if released pretrial. Two problems result from the new “predictive” state of pretrial detention: 1) the failure of judges to accurately predict which defendants pose a threat to the community and 2) over-detention of defendants that can safely be released.This chapter discusses a few solutions to dealing with the new state of predictive justice. While ideally judges would return to common law notions and presume bail for most defendants, this is unlikely with the state of federal and state statutory law. Given the legal reality, there are two recent approaches that address the problem of excessive pretrial detention and prejudice resulting for defendants incarcerated pretrial. First, judges could rely on empirical methods to better predict which defendants will commit crimes while on release. Using this evidence-based approach, judges could look at county-specific data and safely release more defendants, according to a recent study. Second, targeting a budget-conscious public, states and local governments can increase pretrial release supervision programs by demonstrating that it is less costly and sometimes even safer for the public. By incorporating alternatives to detention and increasing pretrial release programs, some states have shown that they can reduce the costs of the pretrial detention system, reduce pretrial crime, and eliminate the prejudice defendants often face with detention. Part I of this chapter overviews the history and evolution of the U.S. system of predictive justice pretrial. Without an understanding of historical expectations that guaranteed bail for most defendants, it is difficult to understand how limited our current notions of pretrial release are and how current U.S. law has abandoned basic due process protections. Part II discusses the problems with past judicial predictions of pretrial crime and demonstrates how judges can release more defendants safely with empirical modeling. Using evidence-based modeling of county-specific data, according to a recent study, judges can release up to 25% more defendants while reducing overall pretrial crime. Part III discusses the new wave of bail reform, including a discussion of the American Bar Association (ABA) Standards on Pretrial Release. This part discusses how some states implementing reforms in line with these standards have increased pretrial release supervision programs by emphasizing fiscal responsibility. Demonstrating that pretrial release programs cost the public less than incarceration and better protect defendants’ rights is another way to increase pretrial release while maintaining community safety.