Pretrial Supervision, Like Detention, Should Be Carefully Limited


Guest blog by Charlotte McPherson Manager, Pretrial Services, State of Kentucky

Life, liberty and…supervision? Not sure our founding fathers would have approved. We can speculate on the thoughts or intent of those drafting our ConMcPherson_Charlottestitution, but when they penned “life, liberty and the pursuit of happiness,” one would hope they meant it.

Conditions of supervision placed on people who have been arrested and released from custody before trial can greatly impair their liberty and, as such, should be used minimally and only to achieve specific ends. In Kentucky, we follow this notion and use supervision sparingly, with excellent results.

Jailing people accused of crimes can be a costly endeavor, but so can releasing them and placing them on supervision. For example, drug testing and electronic monitoring are not cheap, nor is the pretrial officer’s time that is required to monitor compliance for these and other pieces of supervision. With tightening budgets for pretrial programs, defendants are increasingly required to cover the cost of their own drug testing, electronic monitoring, and other forms of supervision that may accompany release. In some cases, the cost of money bail would have been cheaper for the defendant than the cost of their supervision in the long term.

Also, only court date notifications (timely reminders of upcoming court dates) have been shown by research to be effective at increasing court appearance rates. Most other supervision conditions are based on tradition and assumptions of what works.

In Kentucky, we are striving to limit costly and unproven options for release. We provide court date notifications and monitor for new criminal activity and court appearance for every defendant released. In the past 12 months, only 3% of the 135,324 people released before trial were placed on supervision. We choose to recommend release with minimal supervision for a lot of people and we get good results.

For high-risk defendants—only about 12% of all arrested people—standard supervision in Kentucky entails one contact (either by phone or in person) with the defendant per month, court notification and compliance verification. Even with supervision this minimal, high-risk defendants only get arrested 14% of the time while on pretrial release and 79% show up for court when scheduled. McPherson Blog Chart 2                                                                          (Chart 1)
Of all releases, we have an overall rate of 88% court appearance and only 9% have new arrests.
McPherson Blog Chart 1                                                                           (Chart 2)

In the pretrial reform movement the discussion often becomes one between detention and release with supervision. In reality, the majority of people arrested and released before trial don’t need supervision beyond court notification. However, sometimes supervision is the only avenue to secure a defendant’s release. When that happens and the supervision pieces used truly are the least restrictive methods to ensure court appearance and public safety, it is a good thing; but too often judges, or even well-intentioned but misinformed pretrial officers, heap on extra conditions to give the perception of safety. This goes against the well-known Risk Principle and backfires by unnecessarily imposing too many restraints on the liberty of those who are accused, but not convicted, of a crime, increasing their likelihood of pretrial failure.

As a field, we must accept that supervision is a form of deprivation of liberty, and we should limit it to what is necessary. Because the alternative—keeping people in jail—is expensive and an even greater imposition on unconvicted people.

Supervision has a necessary place in the criminal justice system and can be an effective tool for specialty courts, probation and parole. But it is not necessary in the pretrial phase, when other less restrictive and less expensive options work. Until we have consistent research to prove or disprove the effectiveness of each piece of supervision, we should re-evaluate our processes and lean toward less than more when it comes to supervision.

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