By Megan Comfort, Jenn Rineer, Elizabeth Tibaduiza, and Monica Sheppard

The “pretrial process” refers to the events that happen between the time that one is suspected by law enforcement of violating the law and the time that charges are dismissed, the case is otherwise resolved, or the trial process begins. During the pretrial period, people are considered innocent under the law. The U.S. Supreme Court1 has stated, “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The only two constitutionally valid reasons for holding someone in jail during the pretrial period are (1) to prevent flight or (2) to prevent harm to people in the community. Judges make decisions every day about whether to detain or release people going through the pretrial process, as well as about what conditions of release may be needed to help people succeed. Pretrial release assessments are designed to inform their decisions. Unlike assessments that involve a clinician or other professional drawing on their subjective expertise to make a recommendation, actuarial pretrial release assessmentsa rely on mathematical processes. Using large data sets with information about people who previously went through the pretrial process, researchers identify factors related to appearing for court hearings and not being arrested again if released. The researchers then create a sequence of instructions for a computer to follow (called an algorithm) that uses these factors to calculate an estimated likelihood that a person will appear in court and remain arrest free while their case is being resolved. This calculation—referred to as a “score”—is provided to the judge as information to consider when making decisions about pretrial release. A person’s score is also often provided as information to other courtroom actors, such as prosecutors, defense attorneys, and pretrial services officers. When thinking about actuarial pretrial release assessments, it is important to understand the history of the criminal legal system in the United States, which is deeply rooted in the legacy of slavery. Read Race and the Criminal Justice System2 by the Equal Justice Initiative to learn more. No actuarial pretrial release assessment tool or instrument is considered standard. Numerous assessments have been developed, and they vary in terms of the factors and instructions entered in the algorithm. Some use factors that are available through criminal legal system records, such as whether someone has been arrested before or has previously missed a court date. Others include factors like whether someone has a job, is enrolled in a substance use treatment program, or has a place to live. This information is usually obtained by talking with the person who has been arrested. At the time of this writing, pretrial release assessments use algorithms that are created by humans as opposed to ones that are generated by machine learning or artificial intelligence (AI). It is possible that future assessments will rely on AI, which would raise a different set of issues to consider. The use of actuarial pretrial release assessments is growing across the United States. Often, they are an element of broader system change aimed at reducing or eliminating the use of cash bonds, which require people to post money to be released from jail. Judges may consider the actuarial pretrial release assessment score when deciding what conditions of release—for instance, electronic monitoring or mandatory check-ins with pretrial services—are appropriate for a person. In systems that retain money bond as a potential release condition, assessments are sometimes used to inform decisions about bond amounts, but the impact on release is lessened if people remain in jail because they cannot afford to pay their way out. Judges may also use the score as part of their decision about whether to keep someone in jail or release them while their case is pending

APPR Research Brief, April 2024. Research Triangle Park, NC: RTI International, 2024. 5p.

By Rebecca Tiger

The number of people incarcerated in the U.S. now exceeds 2.3 million, due in part to the increasing criminalization of drug use: over 25% of people incarcerated in jails and prisons are there for drug offenses. Judging Addicts examines this increased criminalization of drugs and the medicalization of addiction in the U.S. by focusing on drug courts, where defendants are sent to drug treatment instead of prison. Rebecca Tiger explores how advocates of these courts make their case for what they call “enlightened coercion,” detailing how they use medical theories of addiction to justify increased criminal justice oversight of defendants who, through this process, are defined as both “sick” and “bad.” Tiger shows how these courts fuse punitive and therapeutic approaches to drug use in the name of a “progressive” and “enlightened” approach to addiction. She critiques the medicalization of drug users, showing how the disease designation can complement, rather than contradict, punitive approaches, demonstrating that these courts are neither unprecedented nor unique, and that they contain great potential to expand punitive control over drug users. Tiger argues that the medicalization of addiction has done little to stem the punishment of drug users because of a key conceptual overlap in the medical and punitive approaches—that habitual drug use is a problem that needs to be fixed through sobriety. Judging Addicts presses policymakers to implement humane responses to persistent substance use that remove its control entirely from the criminal justice system and ultimately explores the nature of crime and punishment in the U.S. today.

New York; London: NYU Press,  2012

By Melanie Skemer, Emily Brennan

The U.S. jail population has tripled over the last 30 years due to surges in the use of pretrial detention and money bail.  On any given day, nearly 450,000 people in the United States are detained while awaiting the resolution of their criminal charges. Many of these individuals, still legally innocent, are in jail because they cannot afford to pay the bail amount set as a condition of their release. Pretrial detention takes a significant toll on the lives of affected individuals, putting them at increased risk of continued involvement with the criminal legal system as well as of losing their jobs, housing, and child custody.

As a result, jurisdictions across the United States are reforming their pretrial systems to reduce the number of people who are held in pretrial detention—that is, who remain in jail while they await the adjudication of their cases. As part of this effort, many jurisdictions are moving away from money bail as a primary means of encouraging people to return for future court dates. Instead, they are increasingly relying on alternatives such as pretrial supervision, which requires released people to meet regularly with supervision staff members while their cases are pending. Pretrial supervision has traditionally required clients to report for in-person meetings, particularly for those assessed as being at relatively high risk of failing to attend a court hearing or of being rearrested. 

With the onset of the COVID-19 pandemic, however, many pretrial supervision programs shifted in-person meeting requirements to remote check-ins to protect the health of both clients and staff members. For many jurisdictions, this shift highlighted some of the benefits of remote supervision, which include time savings for clients balancing work, school, caregiving, or other responsibilities, and less resource-intensive administration for supervision providers, potentially generating cost savings. At the same time, some members of the pretrial community questioned whether remote supervision was as effective as in-person interaction at meeting clients’ needs and protecting public safety. As the pandemic waned, it remained unclear whether remote supervision was as effective as in-person or hybrid (a mix of in-person and remote) supervision in achieving the main goals of supervision programs: helping clients make their court appearances and avoid new arrests during the pretrial period.

New York: MDRC. 2024, 37pg