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 Kelly Roskam, Chiara Cooper, Philip Stallworth, and April M. Zeoli

For more than a decade after the Supreme Court held that the Second Amendment protected an individual right to possess a handgun i  the home for  self-defense in District of Columbia v. Heller, 1 courts relied on the well documented connection between domestic abusers and firearm violence to uphold the laws prohibiting persons subject to domestic violence protective orders (DVPOs) from purchasing or possessing firearms. Research finds that these laws are associated with reductions in intimate partner homicide, making them a valuable tool for protecting victimized partners.2 However, the constitutionality of those evidence-based laws is now in question due to the sea change in Second Amendment jurisprudence represented by New York State Rifle and Pistol Ass’n v. Bruen. 3 Bruen repudiated the use of tiers of scrutiny and requires that the government bear the burden of showing that a modern law is relevantly similar to historical firearms laws to be constitutional.4 The Supreme Court has granted certiorari in United States v. Rahimi5 to decide whether the 30-year-old federal law prohibiting the purchase and possession of firearms by persons subject to DVPOs, 18 U.S.C. § 922(g)(8), is consistent with the Second Amendment. Before Bruen, public health research played a straightforward role in Second Amendment analyses of § 922(g)(8). Lower courts had no trouble using such research in their tiers-of-scrutiny analyses to determine that reducing firearm-involved domestic violence was an important    governmental interest and that there was a reasonable fit between § 922(g)(8) and that interest. After Bruen, public health and social science research plays a more nuanced role in Second Amendment analyses. Such research must be connected to an underlying historical argument that implicates either the original plain text of the Second Amendment or the relevance of an historical analogue. 6 In this Article, we illustrate how this connection can be made in the context of § 922(g)(8). We first introduce § 922(g)(8) and discuss how state analogs do or do not implement its proscription of firearm possession by those subject to DVPOs. We then lay out the relevant legal background, including Heller, post-Heller Second Amendment case-law concerning § 922(g)(8), and Bruen, before turning to the meat of our argument. We next discuss Rahimi and other post-Bruen cases addressing § 922(g)(8), arguing that the law satisfies Bruen’s requirement that statutes regulating firearm access must be sufficiently similar to historical firearm laws. We argue that firearm-involved domestic violence is an “unprecedented societal concern” that requires a more nuanced approach to analogy.7 A myopic search for founding-era bars on firearm possession by domestic abusers ignores both important differences in social norms surrounding women, marriage, and domestic violence and the significantly increased role of firearms in domestic violence today. Instead, § 922(g)(8) is more aptly analogized to historical laws evidencing the longstanding tradition of prohibiting “dangerous people from possessing guns,”8 such as so-called “going armed laws,” surety laws, and racist and discriminatory laws that prohibited firearm possession by enslaved persons, Native Americans, Catholics, and those who refused to swear loyalty oaths.

United States, 51 Fordham Urb. L.J. 2023, 39pg