Crossposted on Just Policy Blog as part of Pretrial Justice Institute and Justice Policy Institute Bail Month 2013
Across the country, too many jurisdictions still depend on money bail to determine which defendants can be released pretrial. Forcing defendants to face financial loss if they flee, proponents insist, is essential to ensure that they will return to court. Those who cannot afford bail remain in jail, a reality that disproportionally impacts low-income communities. This practice has significantly increased our overreliance on incarceration, contributing to an exponential growth in our prison population over the past three decades. More than 2 million Americans are behind bars, 20 percent of those pretrial, and more than 65 million adults – a quarter of the nation’s adult population – have criminal records.
In 1966, the United States Bail Reform Act established the rationale of bail: to guarantee a defendant’s court appearance. The Act emphasized that when possible, the law favors release pending trial. The law established a presumption of release by the least restrictive conditions with an emphasis on non-monetary terms of bail. Two decades later, the Bail ReformAct of 1984 permitted judges to consider the danger a defendant posed to the community as a factor in making bail decisions.
Shifting away from a system based on money bail and toward one focused on assessing risk, would both respect the rights of defendants and increase public safety by reducing recidivism. The good news is that more jurisdictions are using evidence-based pretrial risk assessment instruments that can help move the system in that direction. Pretrial risk assessment instruments help identify the likelihood that a defendant will fail to appear in court, and the danger that he or she poses to their community while pending trial. These empirically validated tools allow criminal justice decision makers to make the best use of their resources. In recent decades, the use of risk assessments has become widespread across the criminal justice system. Risk assessments are now frequently used at every stage in the criminal justice system, from police making arrest decisions, to prosecutors and judges making sentencing recommendations, to parole agencies making release decisions.