By Chloe Anderson Golub, Erin Jacobs Valentine, Daron Holman

As more jurisdictions across the country are seeking to reduce their jail populations, many view electronic monitoring (EM, the use of an electronic device to monitor a person’s movement and location) and sobriety monitoring (regular drug and alcohol testing) as potential alternatives to pretrial detention. In theory, the added layer of supervision that these special conditions provide should encourage people to appear for court dates and avoid activities that could lead to new arrests. Yet most studies of the effectiveness of special conditions have faced methodological limitations and have yielded mixed findings. Furthermore, special conditions such as electronic monitoring and sobriety monitoring carry significant costs—both personal and monetary—for those being monitored and for jurisdictions.

This report contributes cross-jurisdiction evidence on the effects of these special conditions of release using retrospective data from cases initiated between January 2017 and June 2019 in four diverse jurisdictions across the United States: one small and rural, one medium-sized, and two large and urban jurisdictions. The MDRC research team employed a propensity score matching design to test the effectiveness of EM and sobriety monitoring in maintaining clients’ court appearance rates and helping them avoid arrest. This method allowed the team to compare court appearance and pretrial rearrest outcomes for individuals released with special conditions with those of statistically comparable individuals who were released without special conditions. The analysis uses a noninferiority approach, which tests whether release without special conditions is at least as effective as (that is, no worse than) release with a special condition.

The analysis found that:

Being released on EM or sobriety monitoring did not significantly improve court appearance rates. The analyses found that the special conditions and non–special conditions groups had similar pretrial court appearance rates. These results were consistent across jurisdictions.

Being released on electronic monitoring did not significantly increase the percentage of people who avoided a new arrest during the pretrial period. In fact, the analysis found that the EM group had a higher pretrial rearrest rate than the non-EM group, a result that was consistent across the two jurisdictions in that analysis. While the factors causing the results are not definitively known, the difference may be a supervision effect: people may be more likely to be arrested if their actions are more closely monitored, compared with others who are less closely monitored. Alternatively, the result may reflect unmeasured differences between the EM and non-EM groups that could not be controlled for in the analysis.

Being released on sobriety monitoring did not significantly improve the percentage of people who avoided a new arrest, but there was variation in this effect among jurisdictions. In two of the four jurisdictions studied, people who were assigned to sobriety monitoring were more likely to avoid new arrests, while in the other two, the result was the opposite.

These findings warrant cautious reflection among policymakers and practitioners on the extent of current electronic and sobriety monitoring use, particularly considering their high personal and financial costs to those directly affected and to jurisdictions. The exploratory findings also highlight a need for additional cross-site studies—in particular, those that employ more rigorous experimental methods—on the effectiveness of special conditions at the pretrial stage. Given the site variation in findings, particularly for sobriety monitoring, more research is also needed to delineate the populations that would benefit from special conditions from those who would not benefit and to illuminate the policies and practices that are associated with the greatest success.

New York: MDRC, 2023. 51p.

By Alex Severson,  Elise Ferguson,  Cris Moore, Paul Guerin, 

This study analyzes the costs and benefits of pretrial detention in Bernalillo County, New Mexico, examining 16,500 felony cases filed between January 2017 and March 2022. The analysis evaluates the relationship between pretrial detention length and failure outcomes, including failure to appear (FTA), new criminal activity (NCA), and new violent criminal activity (NVCA), both during the pretrial period and post-disposition. The study found that longer detention periods (8-30 days) were associated with significantly higher odds of pretrial failure compared to shorter stays, particularly for failure to appear, though this relationship varied by demographic groups. For post-disposition outcomes, moderate detention lengths (4-30 days) were associated with increased odds of general recidivism but decreased odds of violent recidivism. Using marginal cost estimates rather than average daily jail costs, we estimate that reducing detention length to two days for eligible low-risk defendants who did not fail pretrial could yield cost savings of approximately $259,722 annually. The study contributes to ongoing debates about pretrial detention policies by demonstrating that extended detention periods may increase certain failure rates while generating substantial system costs. However, the analysis notes important limitations, including inability to fully control for post-disposition sentencing outcomes and the challenge of establishing causal relationships between detention length and failure rates. 

Albuquerque: University of New Mexico, Institute for Social Research, 2024.40p.

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 Rafael A. Mangual 

After enacting a sweeping bail reform, New York lawmakers have drawn the ire of constituents who are troubled by the many stories of repeat and serious offenders—some with violent criminal histories—being returned to the street following their arrests. In the state’s biggest city, the public’s growing concerns are buttressed by brow-raising, if preliminary, crime data, amplifying calls for amending or repealing the bail reform. The operative provisions of New York’s bail reform severely limit judicial discretion in pretrial release decisions, increasing the number of pretrial defendants who are being released, often without conditions and without allowing judges to consider the risk that a defendant poses to the public. New York is now the only state that does not allow judges to consider public safety in any pretrial release decisions. This brief begins with an overview of New York’s pre-2020 bail law and the reforms that took effect on January 1. It then highlights the reform’s shortfalls and ends by proposing three changes intended to address the public’s legitimate safety concerns while preserving the spirit of the reform effort and addressing some of the inequities and inefficiencies inherent in a system that is heavily reliant on the use of monetary pretrial release conditions. The proposed changes include: • Empowering judges to assess the public safety risk posed by pretrial defendants, and setting out a process that allows them to detain dangerous or chronic offenders; • Allowing judges to revoke or amend release decisions in response to a pretrial defendant’s rearrest; and • In the intermediate term, setting aside additional funds or diverting existing funds to reduce the time a defendant stands to spend in jail if remanded to pretrial detention.  

New York: Manhattan Institute, 2020. 14p.