Demonstrating Achievable Pretrial Justice Improvements
The Smart Pretrial initiative is funded by the Bureau of Justice Assistance (BJA) and managed by the Pretrial Justice Institute (PJI) to test the cost savings and public safety enhancements that can be achieved by improving existing pretrial policies and practices. Specifically, the initiative evaluates the impact of moving to a system that relies on risk assessment to inform pretrial release decision-making and that demonstrates how risk management strategies can improve pretrial outcomes. These improvements are expected to increase the efficiency of the justice system while also being fairer and more just for defendants and victims.
In late 2014, the three inaugural Smart Pretrial sites—the City and County of Denver, Colorado; Yakima County, Washington; and the State of Delaware—began their three-year effort to implement more legal and evidence-based practices. (Click here to view the press release) They each have made tremendous progress since that time.
Learn more about each of the Smart Pretrial Demonstration SitesState of Delaware City & County of Denver, CO
How Smart Pretrial Works
Each Smart Pretrial site has a team of policymakers and staff who work year-round on the initiative. The teams have convened several times since 2014 to share information, ideas, and successes. To date, they have received intensive technical assistance that has consisted of:
- Pretrial system case flow mapping and gap analyses, performed by the Justice Management Institute;
- Analyses of the bail laws and practices for the three states represented (Delaware, Colorado, Washington), performed by the Center for Legal and Evidence-Based Practices;
- On-site monthly technical assistance, team collaboration assessments, and pretrial cost-benefit analyses, performed by Justice System Partners;
- Analysis and assistance on reducing racial and ethnic disparities, performed by the W. Haywood Burns Institute;
- Technological assistance for multiple online trainings and discussion forums, coordinated through the National Judicial College and PJI's University of Pretrial; and
- Overall baseline data analyses, performed by the Justice Research and Statistics Association.
These activities have enabled stakeholders in all three sites to understand the current status (policies, practices, laws, data) of their pretrial justice systems, identify deficiencies, and design new pretrial practices that are more efficient, effective, and lawful. When they conclude their Smart Pretrial work in late 2017, the sites will have designed new and improved pretrial systems that are sustainable beyond the Smart Pretrial initiative and that will serve as roadmaps for pretrial improvement nationwide.
Smart Pretrial Momentum Sites
In 2016, BJA awarded PJI a grant to provide targeted Smart Pretrial-related support to five additional sites. These sites will be competitively chosen in 2017.
The 3 Smart Pretrial Goals
Smart Pretrial sites strive to achieve the “Triple Aim of the 3 M’s” of pretrial justice:
- Maximize public safety
- Maximize court appearance
- Maximize the appropriate use of release, release conditions, detention, and public resources
The 3 Smart Pretrial Values
Safety is a key component of pretrial decision-making and is one of only two reasons under law to deprive an individual of his or her pretrial liberty. A Smart Pretrial system considers the safety of the community, victims, and witnesses in making pretrial decisions and adopts a process of assessing and mitigating risk that has been empirically demonstrated to reduce pretrial misconduct while maximizing public safety.
Fairness in the pretrial system includes a balance between liberty and detention such that liberty is the norm and detention is the carefully limited exception. A fair system upholds due process, including continuous reflection on what due process entails and how it is manifested in the local justice system. Fairness also includes eliminating disparities based on race, ethnicity, and access to financial resources.
As agents of a public sector system, pretrial stakeholders are accountable to community members—including defendants and victims—to achieve desired results while making optimal use of public resources. To do this, system outcomes must be clearly defined and partners must use data to track progress toward those outcomes, invest resources strategically, and work collaboratively to continuously improve the system.
Smart Pretrial 7 Key Elements
The law and available research provide guidance on effective pretrial policy and practice. The Smart Pretrial framework consists of seven key elements that jurisdictions can implement to achieve the Smart Pretrial goals. They are:
1. The immediate or early release of eligible arrestees, after positive identification and assessment of risk of flight and pretrial midsconduct.
Eligible arrested individuals are released by law enforcement with a citation in lieu of a custodial arrest immediately after positive identification and an assessment of risk for pretrial misconduct and failure to appear.
2. The assessment of every booked defendant for risk of failure to appear and new criminal activity using a BJA-approved risk assessment tool.
A BJA-approved, locally validated risk assessment tool assessing a defendant’s likelihood of new criminal activity and for failure to appear is administered to every individual who is booked into jail and for whom a release or detention decision will be made.
3. The early review of charges by a seasoned prosecutor.
An experienced prosecutor reviews the defendant’s charges and risk assessment prior to the defendant’s first appearance.
4. The presence of defense counsel, prepared to provide effective representation, at the earliest hearing that could result in pretrial detention.
Defense counsel reviews the defendant’s charges and risk assessment and is prepared to provide effective representation at the earliest hearing that could result in the defendant’s pretrial detention.
5. The release or detention of defendants is informed by the outcome of the risk assessment and adversarial hearing. Where permitted by current legislation, preventive detention hearings should be considered.
Release or detention decisions are informed by the outcome of the risk assessment and an adversarial hearing. Judicial officers make deliberate release or detention decisions, and ensure that their decisions for release are immediately effectuated. To the extent permitted by law, preventive detention hearings are used to detain defendants.
6. The use of court reminder protocols and risk-based supervision and/or diversion for released defendants.
Released defendants receive individualized, least restrictive conditions of release that are demonstrated by research to be effective or promising in mitigating pretrial risk.
7. If convicted, the transfer of information about the defendant’s pretrial supervision outcomes to the sentencing court, prosecutor, defense counsel, as well as any subsequent supervising authority.
If convicted, information on pretrial release (e.g., supervision) outcomes are transferred to the sentencing court, prosecutor, and defense counsel, as well as to any subsequent supervising authority.