How to Fix Pretrial Justice

Reduce Unnecessary Arrests.

Contact with police or law enforcement does not have to lead to time in jail. Statutes can be changed to downgrade some offenses. Law enforcement officers can be granted more discretion in deciding when a case would be better resolved by treatment or services. In some situations, individuals with particular needs—those with mental health or substance-use issues, for example—may be deflected to support services without entering the criminal justice system. At other times, diversion strategies can offer a path to release for people already in the system. Reducing unnecessary arrests also promises benefits to system officials. Citation in lieu of arrest policies, for example—which let law enforcement officers present people with a date to appear in court instead of taking them into custody—reduce time spent on low-level cases.

Replace Money Bail.

Money bail discriminates against poor and working-class people and leads to unequal outcomes based on wealth. Commonsense reforms include measures to accelerate the pace of court processes and to highlight relevant information early in the legal process. Even modest actions, such as calling released people to remind them of their court dates, can yield positive results. A Jefferson County, Colo., court notification program raised the appearance rate from 79% to 92% when the caller made direct contact with the court-involved person. 1

Restrict Detention.

In a landmark 1984 ruling, Supreme Court Justice William Rehnquist wrote, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Commonsense steps can help jurisdictions determine the least restrictive conditions needed for each individual.

Expanding the use of “unsecured bond,” which requires payment only if a person fails to show up in court, or using nonfinancial conditions such as regular telephone or in-person contact with caseworkers, can further limit detention before trial. Most important, in cases where detention seems appropriate, a deliberative course of full due process can ensure that detention is the only option that can reasonably assure public safety and court appearance.

Restricting detention also promises significant cost savings. The average daily cost of pretrial detention is $74.61, compared to $7.17 for pretrial supervision. 2

The Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI) offers an example of what happens when systems work to limit deeper system involvement. Since the 1990s, when it launched, JDAI has reduced the number of youths detained by 43% in more than 300 sites in 39 states. During that time, juvenile crime decreased by more than 40%.3

Raise Equity.

All people, regardless of race, ethnicity, gender, or financial status, should enjoy equally the benefits of safer, fairer pretrial justice. Replacing money bail is a necessary first step. However, it is not enough to address bias and unequal outcomes fully. Pretrial reform requires looking at policing practices too. Effective data collection is also needed to identify decision points where inequalities persist and to track progress toward their resolution.

Affected communities must have a meaningful role in setting goals, undertaking new policies and practices, and evaluating impact and outcomes. Emerging research also suggests that strategies such as raising awareness around implicit bias and cultural differences, and requiring more thorough decision making through checklists or note taking, may also be effective.

Although raising equity may be one of the most challenging aspects of reform, it is a task that strengthens the system on a fundamental and practical level.4

1. Citations take significantly less time to process than do arrests (24.2 minutes vs. 85.8 minutes), saving just over an hour per incident. [Source: IACP, Citation in Lieu of Arrest, 2016.]

2. Jane Wiseman and Stephen Goldsmith. “Fairness is Fiscally Responsible.” June 27, 2016.

3. JDAI at 25: Juvenile Detention Alternatives Initiative Insights from the Annual Reports Results, The Annie E. Casey Foundation (2017).

4. Claire M. B. Brooker, Yakima County, Washington Pretrial Justice System Improvements: Pre- and Post-Implementation Analysis, Pretrial Justice Institute and Justice System Partners, 2017.