This commentary originally appeared in the New York Times on February 26, 2015.
Recent research released by the Laura and John Arnold Foundation shows that when low-risk defendants are detained prior to trial, they are nearly 40 percent more likely to re-offend. This is likely because their connections to work, family and housing are strained or severed. Furthermore, those who are jailed prior to trial are 27 percent more likely to ultimately receive a long prison sentence, perhaps because of the leverage prosecutors have to exact a plea from someone who is behind bars for many months before a trial can occur.
A New York City study found that 27 percent of those who remain in jail until their trial either are never convicted and 19 percent receive probation. Thus, quite often the pretrial release decision is the most crucial one.
Yet courts in most jurisdictions fail to use proven actuarial risk assessment instruments to help determine who should be released and with what conditions. In 2014, Kentucky implemented such a statewide assessment which focuses on factors that can be gathered without an interview, such as whether the defendant has prior charges, other pending charges and previous failures to appear. It has shown great accuracy in predicting a defendant’s risk to flee or be re-arrested while awaiting trial, leading to reductions in both jail costs and failures to appear since implementation.
Defendants whose assessment indicates that, with appropriate monitoring, they do not pose a substantial risk of fleeing or committing a serious offense prior to trial should not be kept in jail simply because they lack means to secure bail. With conditions that can include electronic monitoring and treatment, pretrial supervision programs work to ensure these defendants show up for their hearings.
In New York City, the police use a desk appearance program to process those arrested for lower-level offenses, without prior significant offenses or failures to appear, at the nearby police substation, which has achieved a 4 percent failure to appear rate for arraignments held within 15 days.
While jails will always be necessary for public safety, only as a last resort should we trap defendants indefinitely behind the front door of the criminal justice system.
Marc A. Levin is policy director of Right on Crime and the director of the Center for Effective Justice at the Texas Public Policy Foundation.