Noted & Quoted•
Beyond Bail Reform: The ‘Safety’ Approach to Pretrial Justice
The Crime Report
By Meghan Guevara and Tenille Patterson
The recent uptick in violent crime around the country has put many criminal justice reforms under fire, and bail reform is no exception.
Despite the fact that there are no data indicating that bail reform drives violent crime, the few high-profile crimes that have made the front page, or led broadcast news reports, have been enough to turn the nation’s critical eye towards pretrial justice.
We should be asking ourselves instead whether current bail policies maximize safety, both for the public and for people impacted by the criminal legal system.
The answer, unfortunately, is no.
Many jurisdictions still rely on cash bail systems, where release or detention are often determined by whether someone can afford to pay their bond. Money bonds are often part of a tough-on-crime narrative, when in actuality they don’t make the community any safer.
Research has shown people released on cash bonds do not fare any better than those who are released on their own recognizance, while those who remain in jail on unaffordable bond become more likely to commit future crimes because of the life-altering impact of incarceration.
Recognizing that money-based systems are at best ineffective and at worse harmful, risk-based systems, usually employing algorithm-based Risk Assessment Instruments (RAIs), were developed as an “Option B”—a way to get (some) unconvicted people out of jail without the need to rely on money, using empirically developed tools to measure and attempt to mitigate the risk a person may pose in the community upon release.
Many reformers—including our colleagues at the Pretrial Justice Institute—embraced risk-based systems as a promising alternative to money bonds, and many jurisdictions made the switch.
However, we have learned over time that RAIs also create a false narrative of safety.
The ability of RAIs to predict violent crime is poor. One reason for this is that violent crime on pretrial release is a rare event—most people who are released remain safely in the community.
Despite the good intentions of their proponents, risk-based reforms contribute to unnecessary detention, over-supervision and racial bias, without being able to deliver on the promise of predicting who is truly a threat to the community.
The real question we need to be asking is: Why aren’t we demanding an Option C?
Now is the time to break the binary that has limited our thinking in pretrial justice—to pursue safety for all, and answer the call for racial equity.
At the Pretrial Justice Institute, we’ve been wondering, What If?…
What if equity was central to our policies? What if our decisions were driven by our values?
What if we considered the safety of people facing charges, as well as the community as a whole?
What if community members, especially those impacted by the criminal legal system, played an influential role in developing future reforms?
Fortunately, as we look across the decision points that make up the pretrial process, there are many examples of policies and practices that can be part of Option C.
These examples contribute to community stability in ways that can disrupt pathways to crime, as well as providing individualized responses to people who may threaten the safety of others.
Below, we have listed a few of the ways to get there.
Decriminalizing activities related to health and basic needs
Many arrests are linked to mental and behavioral health issues or being unhoused. Changing criminal codes or declining prosecution for these charges can reduce the consequences of legal system involvement.
Implementing alternatives to 911
Community members often call 911 as a last resort when dealing with a crisis, resulting in difficult or potentially violent interactions with police. Alternatives to 911 can better meet the needs of people facing crisis while freeing up law enforcement to address more serious crime.
Using citation and summonses to avoid custodial arrest
Even a few nights in jail can have a detrimental impact—people can lose their jobs or housing, and are more likely to commit a future crime. Avoiding custodial arrest altogether, especially for those people who are likely to be released at first appearance, allows people to remain in the community and reduces jail populations.
Significantly restricting the use of detention
State statutes and constitutions often limit who can be detained, and under what circumstances. If people were only detained if they met strict legal criteria, and after an adversarial hearing, then jails populations would plummet, while courts would still have a mechanism for identifying people who may pose a specific threat if released.
Limiting conditions of release
If courts avoid long lists of pretrial conditions, and instead only impose conditions that are individualized to a particular case, like orders of protection, then there is an opportunity to respond to specific concerns and meet the needs of victims without extensive over-supervision.
Developing robust community supports
Breaking the cycle of criminal legal system involvement often requires public health and social service interventions, not jail time. Investing in community services that are available without formal court conditions can meet individual needs and build healthier communities—and there are many great examples where this is already happening.
On their own, these strategies are logical and pragmatic; taken together, they can be the first steps in creating comprehensive system change.
A pretrial process driven by equity, values, safety, and community would look very different than what we have today. It also would not be a one-size fits all approach; communities with unique challenges will develop unique solutions.
For those of you who are mired down in local debates between money- and risk-based systems, we hope you will consider having conversations about your own Option C.
PJI’s new report, What If? 10 Questions for Sparking Local Pretrial Change, can support you in that discussion.
We hope you will join us in thinking deeply about what will truly make our communities safe and just for all.
Meghan Guevara and Tenille Patterson are executive partners at the Pretrial Justice Institute (PJI). They can be reached via the PJI’s Twitter handle at @pretrial, via Facebook at https://www.facebook.com/pretrial, or on Instagram @pretrialjustice.