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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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