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Pretrial Risk and Cash Bail

Justin Goss February 20, 2018
Outlaw's hands locked in handcuffs isolated on black

Most of California’s jail inmates are unsentenced defendants awaiting arraignment, trial, or sentencing—and this heavy reliance on pretrial detention has come under scrutiny in recent years. The goals of pretrial detention are to make sure that defendants appear at court hearings and to ensure public safety. But California’s high pretrial detention rates have not been associated with more defendants appearing in court or lower levels of rearrest. Reforming the current system by allowing more defendants to be released pending trial could allow the state to free up scarce jail beds and realize substantial cost savings—while maintaining public safety.

Last year, state lawmakers examined the issue of cash bail, the predominate means by which defendants can be released pretrial. Legislation to change the system is pending. Under cash bail, judges can order defendants to pay a certain amount—which varies based on the alleged offense—in order to secure release. In most cases, defendants contract with bail bond companies to deposit the full amount of the bond with the court in exchange for a service fee (usually 10% of the bond). If the defendant complies with all court orders during the release period, the bond company gets the deposit back and keeps the defendant’s premium as payment. The idea is that the threat of financial penalty helps prevent pretrial misconduct—for example, making offenders less likely to flee the jurisdiction and more likely to appear in court.

However, there are several flaws in the bail system. Bail is calculated by offense, making it more challenging for defendants cited for more serious offenses to obtain release. This may make intuitive sense, but it turns out offense category is not typically a strong predictor of future misconduct. For instance, PPIC research found that misdemeanor probationers were in fact more likely to be booked into jail at least two times after release (19.6%) than felony probationers (17.6%). Moreover, cash bail makes it more difficult for low-income defendants to obtain release, regardless of their risk to public safety, raising concerns about whether the system is treating wealthy and poor individuals equitably.

The primary alternative is a risk-based framework in which law enforcement employs tools called risk assessments to determine which offenders can safely be released pretrial. Risk assessments use demographic data and information pertaining to a defendant’s criminal history to predict a defendant’s probability of disobeying the terms of his or her release. Some of these models show great promise. For example, researchers found judges in New York could reduce the jail population by 42% without affecting crime rates by following their model’s release recommendations.

But these tools have limitations. California already uses a range of risk assessment tools at the state and county levels, but they vary in predictive power based on whether they have been validated. Validating a risk tool means testing it using local data from the community of offenders it will be assessing. Counties using unvalidated, out-of-the-box risk assessments could improve their tools’ predictive powers by following the example of counties like Riverside, where county agencies collaborated with academics to tailor a tool that had been originally developed in Virginia to Riverside’s unique characteristics—boosting the model’s accuracy.

Local validation studies consume a lot of time and resources. Riverside’s took two years and required data from over 500 offenders. However, if the state continues to emphasize risk-based reform and evidence-based practices to improve its corrections system, making these models work for California and its counties should be a priority.

 

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