27 Fed. Sent'g Rep. 216 (2014-2015)
Pretrial Risk Assessment: Improving Public Safety and Fairness in Pretrial Decision Making

handle is hein.journals/fedsen27 and id is 224 raw text is: 



pre FW E\As Assessment:  dMovujg P  ic Safety

and Fairness in P es ra [Decision MJaking


ANNE
MILGRAM
Vice-President of
Criminal Justice,
Laura and John
Arnold Foundation

Senior Fellow and
Adjunct Professor,
New York University
School of Law

ALEXANDER
M. HOLSINGER
Professor, Criminal
Justice &
Criminology,
University of
Missouri-Kansas
City

MARIE
VANNOSTRAND
Justice Project
Manager,
Luminosity, Inc.

MATTHEW W.
ALSDORF
Director of Criminal
Justice, Laura and
John Arnold
Foundation


On any given day, approximately half a million people in
the United States are in jail awaiting the resolution of their
cases.' In fact, these pretrial detainees represent more than
6o percent of the jail population. For each of the more than
12 million individuals arrested each year, the decisions
made about how to deal with them while their cases work
their way through the system are some of the most complex
and consequential of any made during the course of the
case.2 Among the most important are whether to detain or
release a defendant before trial, and if release is granted,
whether to impose conditions, such as drug testing, bail, or
electronic monitoring. In addition, depending on the
resources available in a given jurisdiction, decisions need to
be made regarding whether and to what extent a defendant
will be supervised during the pretrial stage. Not surpris-
ingly, the fundamental release/detention decision has been
an important focus of policy makers and researchers for
some time.3
   Pretrial decisions have two overarching purposes: to
prevent any new criminal activity by the defendant before
case resolution, and to ensure a defendant's appearance in
court. When these decisions are made, several important
considerations must be taken into account, including:
public safety; which conditions can most effectively address
concerns related to release of a defendant; the costs of
incarceration, supervision, and other conditions; and the
defendant's right to due process and equal protection.
There is broad agreement in principle that defendants who
pose the highest risk of committing new crime or skipping
court should be detained, that those of the lowest risk
should be released with minimal or no conditions, and that
those of moderate risk can often be released with the con-
ditions necessary to assure their appearance and prevent
additional offenses. The question, however, is how best to
distinguish among these various groups. Currently in the
vast majority of jurisdictions, judges have to make this
determination subjectively, often with inconsistent or lim-
ited access to key information relevant to a defendant's risk
level; or they must rely on frameworks that determine
outcome based almost exclusively on the current charge(s).
   The impacts of this model of decision making-on
public safety, government expenditures, and fundamental
fairness-are far from ideal. All too often, high-risk
defendants who pose significant danger to public safety are
released quickly, while large numbers of low-risk,


nonviolent defendants remain in jail for long periods.
Simply put, this means we are spending enormous sums of
money detaining the wrong people. And in the process, we
are making ourselves less safe, not more so. Fortunately, in
recent years, there has been growing interest in a new
model of pretrial decision making, one that provides judges
with actuarial risk assessment instruments to help inform
their decisions. This is a very promising development,
since, when these tools are research-based, objective, and
fair, they can enhance public safety, ensure an efficient use
of resources, and promote just treatment for all defendants.

I. The Risk Principle .
The risk principle is well known in the world of correc-
tions-that is to say, among criminal justice practitioners
who work in the post-conviction arena. In broad strokes, it
states that offenders should be classified into categories
associated with their relative risk of reoffending; if classi-
fication can be done in a statistically valid and reliable
fashion, then the agencies that supervise and work with
offenders will be in a better position to respdnd accordingly.
For example, if correctional agencies understand which
offenders are at low risk, moderate risk, and high
risk for reoffending, then resources can be allocated in
a manner that ensures high-risk offenders receive more
supervision, more treatment and rehabilitative services,
and generally more attention. Conversely, low-risk offen-
ders will receive a lower degree of intervention, less
supervision, and less attention. Agencies that incorporate
the risk principle have been shown to increase public safety
by reducing recidivism.4 Other research has demonstrated
the flip side of the coin-namely, the negative impacts that
come with violating the risk principle. These studies have
demonstrated that significant problems arise when high-
risk offenders are under-supervised and/or do not receive
a sufficient level of intervention, or when low-risk offenders
are over-supervised and/or receive a greater degree of
intervention than necessary. In short, when the risk prin-
ciple is violated, or when agencies fail to implement the risk
principle validly and reliably, public safety decreases.5
   This all boils down to a question of fit: ensuring that the
intervention, whatever it may be, matches the risk level.
When individuals are assigned to interventions that.are bad
fits for their risk profile, the result is higher recidivism rates
for both low- and high-risk offenders, and in turn reduced


             Federal Sentencing Reporter, Vol. 27, No. 4, PP. 216-221, ISSN 1053-9867, electronic ISSN 1533-8363.
            2015 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
           or reproduce article content through the University of California Press's Rights and Permissions website,
                     http://www.ucpressjoumals.com/reprintlnfo.asp. DOI: Io.1525/fsr.2o15.27.4.216.


FEDERAL SENTENCING REPORTER            VOL. 27, NO. 4     APRIL 2015

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