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Can Pretrial Decisions Be Improved?

Heather Harris, Justin Goss March 27, 2019
Courtroom

Controversy over the cash bail system in California has led to a number of recent legal and legislative actions that may spell the end of cash bail in the state. If that happens, risk assessment systems would take on heightened importance in decisions about pretrial detention. At stake are concerns about equity, consistency, and transparency in the pretrial process.

Californians who have been arrested but not yet convicted are 84% more likely to be detained than defendants in other states. California’s high bail amounts contribute to this high rate. Of the defendants who are released on bail, nearly all secure their release via bail bondsmen, who require a nonrefundable deposit equal to 10% of the bail amount. The average bail amount in California in 2015 was $50,000—five times higher than the national average. Many poor and middle class individuals lack the means to secure pretrial release through bail—one study found that 40% of Americans do not even have $400 on hand to cope with an emergency.

State and federal courts have begun to address this inequity. Last year, a state appellate court ruled that defendants should not be held before trial solely because they cannot afford bail. More recently, a federal judge ruled against San Francisco’s use of bail schedules, which set bail amounts. The judge found that although bail schedules seem scientific and transparent, bail amounts are set inconsistently, their origins are unclear, and they do little to ensure public safety.

Additionally, judges can override recommended bail amounts based on their assessment of a defendant’s likelihood of misconduct—arrest or failure to appear in court—if he or she is released during the pretrial period. And they can do so without reporting why. The result has been inconsistency in pretrial detention decisions for defendants who committed similar crimes.

Concerns about inconsistency and lack of transparency motivated the recent passage of Senate Bill 10, which eliminates cash bail and mandates the use of risk assessment tools. These tools use mathematical models to predict pretrial misconduct. Pretrial detention recommendations based on these predictions are supposed to guide judges’ pretrial detention decisions. SB 10 will be subject to a November 2020 referendum—but it’s worth noting that 49 of California’s 58 counties already use some type of risk assessment tool.

figure - Most Counties Already Use a Pretrial Risk Assessment Tool

Risk assessment tools are not without controversy. They have been challenged as unfair and can only surmount this challenge if they are used within transparent and consistent risk assessment systems. Importantly, judges will still be able to override recommendations from those systems.

To ensure more transparency, it will be critical to collect information about why judges override such recommendations. Only with court data that comprehensively records information used to make pretrial detention decisions can the essential work of ongoing evaluation take place. These evaluations are key to determining how well risk assessment systems protect individuals’ liberty while also ensuring public safety—and how potential sources of unfairness in them can be identified and addressed.

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