Pretrial Release Decisions Analysis Tools for Bail System

Introduction

In the criminal justice system, pretrial risk release decisions based on pretrial risk assessments play a vital role in determining the likelihood of an individual absconding or committing a crime while awaiting trial. These assessments utilize data-driven algorithms to provide judges with more accurate and consistent pretrial determinations. By turning educated guesses into science-based predictions, pretrial risk assessments aim to improve the fairness, efficiency, and effectiveness of the bail system.

What are Pretrial Risk Assessments?

Pretrial risk assessments are algorithms that analyze historical data patterns to group individuals into different risk categories and predict outcomes. These assessments can utilize “static” factors, which are unchanging facts, and “dynamic” factors, which capture attitude, behaviors, and needs. By comparing an individual’s history to others who have previously succeeded or failed on pretrial release, these assessments provide judges with additional information to consider when making release decisions.

Here are some well-known pretrial risk assessments and the factors they use to predict outcomes:

 

Pretrial Risk Assessment	Factors Used to Predict Outcomes
Public Safety Assessment (PSA)	Age at current arrest Current violent offense Pending charge at the time of arrest Prior misdemeanor conviction Prior felony conviction Prior violent conviction Prior failure to appear in the past two years Prior failure to appear older than two years Prior sentence to incarceration
Virginia Pretrial Risk Assessment Instrument (VPRAI)	Charge type Pending charges Criminal history Failure to appear in court history Violation of bond or probation history Length at current residence Employed or primary caregiver
Ohio Risk Assessment System – Pretrial Assessment Tool (ORAS-PAT)	Age at first arrest The number of Failure To Appear (FTAs) warrants Number of jail incarcerations Employed at the time of arrest Residential stability Illegal drug use Severe drug use problem
Indiana Risk Assessment System – Pretrial Assessment Tool (IRAS-PAT)	Age at first arrest Prior jail or prison sentences Employed at the time of arrest Residential stability Illegal drug use Severe drug use problem Severe alcohol use problem

These are just a few examples of pretrial risk assessments used in various jurisdictions. Each tool aims to predict the likelihood of a defendant failing to appear in court or committing a new crime while awaiting trial. The factors listed for each tool are some primary considerations, but each tool may have additional nuances or specific scoring mechanisms.

It is important to note that pretrial risk assessments do not replace professional judgment or judicial discretion. They are intended to supplement these decision-making processes by giving judges a clearer understanding of an individual’s risk level.

Addressing Concerns with Pretrial Release Decisions

1. Public Safety and Detention Rates: The U.S. Supreme Court emphasizes that pretrial detention should be the exception, not the rule. However, fear of individuals committing violent crimes upon release often leads to unnecessary detention. Pretrial risk assessments can help prevent high-risk individuals from being released and ensure that low-risk individuals are not needlessly detained. By providing judges with more accurate information, these assessments contribute to maintaining public safety.
2. Racial Disparities: Pretrial determinations have disproportionately impacted communities of color. Research suggests that racial stereotypes and unconscious bias in judicial decisions contribute to this disparity. Objective assessment tools, such as pretrial risk assessments, can help mitigate implicit and explicit discrimination in the bail system.
3. Cost of Pretrial Incarceration: Pretrial incarceration is costly, estimated at $13.6 billion annually. Pretrial risk assessments can save money and resources by expediting the release of low-level, low-risk offenders. Additionally, these assessments can transform bail schedules into more effective tools by considering individual risk factors instead of predetermined monetary amounts.

Effectiveness of Pretrial Risk Assessments

Proponents argue that pretrial risk assessments can reduce unnecessary pretrial detentions, mitigate public safety risks, and improve consistency between jurisdictions. Research shows that judges inappropriately release about half of the highest-risk defendants. By using objective assessments, failures to appear can be reduced by 24.7% and rearrests by 11.1%, with no change in pretrial detention rates.

To determine the effectiveness of pretrial risk assessments, validation studies are conducted using historical data. These studies use the “area under the curve” (AUC) measurement, which calculates the probability that an individual who was unsuccessful before trial would have been given a higher risk classification with a specific assessment tool. The following performance indicators are commonly used when interpreting AUC data: Poor (less than 0.55), Fair (0.55-0.63), Good (0.64-0.70), and Excellent (0.71-1.00).

Validation studies have shown that the six pretrial risk assessments listed above have high accuracy rates. They provide empirical and objective reviews of a defendant’s ability to succeed on pretrial release.

Challenges and Concerns with Pretrial Risk Assessments

1. Predictive Ability: Some researchers question whether pretrial risk assessments are any more predictive than untrained humans. A study found that untrained individuals accurately predicted recidivism rates at an average of 64 to 67 percent, using significantly fewer factors than pretrial assessments. However, this study did not include failures to appear or violent criminal activity in its analysis.
2. Judge Override: Judges often override assessment recommendations due to the failure of assessments to consider interventions that might reduce risk. This can lead to increased and unnecessary detentions, undermining the purpose of pretrial risk assessments.
3. Potential Biases: Critics raise concerns about the potential biases of pretrial risk assessments. They argue that relying on historical data tainted by systemic racism within the criminal justice system may produce less accurate outcomes for marginalized communities. The assessments’ limited consideration of race prevents them from addressing or correcting this issue.
4. Implementation Costs: Jurisdictions may have concerns about the upfront costs of implementing pretrial risk assessments. However, studies show that these assessments can save communities millions of dollars in the long run.

Conclusion

While pretrial risk assessments are not perfect, they can be valuable tools in the decision-making process for pretrial release. By providing judges with more accurate information about an individual’s risk level, these assessments can help balance public safety with the presumption of innocence. It is crucial to continually evaluate and improve these tools to ensure accuracy, fairness, and equity in pretrial release decisions. By doing so, we can enhance the effectiveness of the bail system and promote a safer and more just society.