Stuck in Pretrial Limbo

On any given day, roughly 460,000 citizens are incarcerated in our nation’s jails prior to any trial or conviction. These men and women —a striking increase from 1990, when about half of the individuals in our jails had not yet been convicted of a crime. This explosion of pretrial detainees is of note when considering the nationwide decline of arrests and crime over the same period.^[1]

When an individual is arrested and charged with a crime, the conditions while awaiting trial can range widely. A judge may decide that a person’s significant risk of flight or danger to the community do not make pretrial release appropriate. Alternatively, a judge can release a defendant on recognizance, making a judgment that the defendant is highly likely to return to court without a new arrest. A judge can also impose conditions of pretrial release, whether nonfinancial (supervision), financial (cash bail or bond), or property suretyship. Financial requirements can make it very difficult for indigent defendants to avoid pretrial detention.^[2] The cost of bail, not ineligibility for release, explains why most pretrial detainees remain in custody.^[3]

Historically, criminal justice practitioners understood financial requirements for release as a means to safely avoid jail overcrowding and provide a strong incentive for defendants to responsibly behave in the community before court appearances. However, excessive bail amounts that are not justified by public safety and flight risks, particularly for more indigent defendants, have long been voiced in our legal history. For example, the Eighth Amendment’s prohibition against “excessive bail” has been addressed in the 1951 Supreme Court decision striking down a particularly high monetary bail set by a federal district court in Stack v. Boyle.^[4]

Research has documented a range of costs of pretrial detention for defendants and their communities. Aligning with findings from Texas and 71 federal district courts, a study of over 150,000 Kentucky defendants showed “low-risk defendants who are detained for the entire pretrial period are 5.41 times more likely to be sentenced to jail and 3.76 times more likely to be sentenced to prison when compared to low-risk defendants who are released at some point before trial or case disposition.”^[5] These disparities may be explained by the fact that individuals awaiting their trial in the community are better able to communicate with defense counsel and pursue certain activities, such as drug treatment or restitution to crime victims, that encourage a judge to reduce the scope and severity of a punishment.^[6]

Loss of parental custody, employment, and health insurance are also associated with detention before trial.^[7] By upending the life circumstances of low-risk defendants struggling with addiction and behavioral health challenges and placing them in jail atmosphere among peers who more extensive criminogenic histories, pretrial incarceration could also contribute to negative public safety outcomes.^[8] Research on the Harris County jail system concluded that “the pretrial detention of 10,000 people charged with misdemeanors could be expected to result in 400 additional felonies and 600 more misdemeanors than if they had been released pretrial.”^[9]

These collateral costs of pretrial detention have prompted justice systems to reduce the use of monetary bail and find ways for more individuals to safely await trial in the community. For instance, more courts are basing their decision to order detention on risk-assessment tools, which can use a variety of key factors and justice system data to estimate an individual’s likelihood of appearing in court without a new arrest. Following adoption of these tools, New Jersey and counties in North Carolina, Kentucky, Washington, and Illinois successfully reduced their pretrial incarcerated populations without harm to public safety.^[10] By incorporating factors like prior arrests, education, neighborhood, or unemployment that reflect systematic inequities rather than individual behavior alone, risk assessments may have the potential to maintain or exacerbate racial disparities in treatment of Black and white defendants.^[11] However, present studies of risk-assessment tools have not concluded that such tools have worsened disparate treatment of African American defendants.^[12]

Justice systems are also exploring what combination of services and conditions during supervised release improves pretrial outcomes. New findings from New York City estimated that simple changes to court summons documents and text reminders for court dates reduced failure to appear rates between 13 and 21%.^[13] Studies of electronic monitoring from the Federal District of New Jersey and Santa Clara County found improved outcomes in failure to appear and rearrest rates. However, when jurisdictions impose cost-sharing fees for tracking, defendants can face financial hardships like those created by monetary bail.^[14]

Pretrial supervised release, which can include regular check-ins with case managers, visits to defendant’s home and workplace, and social services, were shown in Philadelphia, District of Columbia, and Milwaukee to improve pretrial outcomes.^[15] However, more research is needed to “definitely show which defendants supervised release is best suited for and [how] supervised release can best be implemented and managed.”^[16] Excessive supervision to low-risk defendants may widen justice system costs, increase technical violations, and disrupt positive social interactions.^[17]