Decision Points: Cash Bail Derails Pretrial Justice and Should Be Replaced With Risk Assessment

By: Cherise Fanno Burdeen

Bail Data Analysis Pretrial Services November 17, 2015

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

We expect our criminal justice system to be fair and effective. It’s part of our national DNA to want equal treatment and to get the job done. But in pretrial justice—the time between when a person is arrested and when the charges are resolved—the basic principles we hold dear are too often undermined by our use of cash bail.

The pretrial system should—and could—work like a bicycle, with courts using different gears depending on needs of each specific case. One gear releases low-risk defendants outright, with only a promise that they return to court at a later date. Other gears allow medium-risk defendants to be released under supervision—regular check-ins, drug testing, or electronic monitoring, for example. Yet another gear would keep defendants who pose clear public safety or flight risks in jail before trial without the option of release.

However, the prevalent use of cash bail as a condition of pretrial release derails this system, essentially causing most decisions to result in the detention gear when defendants are not able to pay. Money bail forces the courts to bet on a defendant’s ability to pay and hope for the best. Unfortunately, in too many cases they bet too high on low-risk defendants, and too low on dangerous defendants with means.

As a result, more than six out of ten people in America’s jails are unconvicted and awaiting trial. For the poor people accused of minor offenses, detainment for long periods before trial only worsens their situations, as they lose their jobs, housing, and family ties—connections that reentry programs spend millions trying to restore once they are released. Conversely, almost half of the most dangerous defendants may be released with little or no supervision simply because they can afford cash bail. This is a public safety concern for us all.

Fortunately, there are proven, pragmatic solutions for ensuring that courts choose the pretrial justice gears that make sense. Foremost among them: the practice of setting cash bail for pretrial release should be replaced with (not coupled with) risk-based decision making that has been shown to deliver the kind of fair and effective justice we expect. Examples of jurisdictions that have seen improved outcomes through risk-based pretrial decision-making include Kentucky, the District of Columbia and Mecklenburg County, North Carolina, to name but a few.

Objective, data-based risk assessment helps courts decide whether a defendant can be safely managed in the community while his or her case moves through the system or if a person is too dangerous to be released pretrial. Risk assessment considers not only the individual’s current charge but also a variety of factors—such as criminal history, employment history, and family ties—that rigorous, scientific research has shown to reliably predict pretrial success.

As the 20 jurisdictions participating in the Safety and Justice Challenge—a new initiative to change the way America thinks about and uses jails—strive to ensure that their jails are used appropriately and efficiently, we at the Pretrial Justice Institute believe that they should move to replace cash bail with pretrial risk assessment systems. Risk-based decision-making is fairer, more effective and helps keep cash from undermining the flexibility needed for this important decision point.

Note: This piece also ran on the Huffington Post (“Decision Points: Cash Bail Derails Pretrial Justice and Should Be Replaced With Risk Assessment”)