Proposals For Improving The U.S. Pretrial System
POLICY PROPOSAL 2019-05 MARCH 2019Proposals for Improving the U.S. Pretrial SystemWill Dobbie and Crystal Yang
MISSION STATEMENTThe Hamilton Project seeks to advance America’s promiseof opportunity, prosperity, and growth.We believe that today’s increasingly competitive global economydemands public policy ideas commensurate with the challengesof the 21st Century. The Project’s economic strategy reflects ajudgment that long-term prosperity is best achieved by fosteringeconomic growth and broad participation in that growth, byenhancing individual economic security, and by embracing a rolefor effective government in making needed public investments.Our strategy calls for combining public investment, a secure socialsafety net, and fiscal discipline. In that framework, the Projectputs forward innovative proposals from leading economic thinkers— based on credible evidence and experience, not ideology ordoctrine — to introduce new and effective policy options into thenational debate.The Project is named after Alexander Hamilton, the nation’sfirst Treasury Secretary, who laid the foundation for the modernAmerican economy. Hamilton stood for sound fiscal policy,believed that broad-based opportunity for advancement woulddrive American economic growth, and recognized that “prudentaids and encouragements on the part of government” arenecessary to enhance and guide market forces. The guidingprinciples of the Project remain consistent with these views.
Proposals for Improving the U.S. Pretrial SystemWill DobbiePrinceton University and NBERCrystal YangHarvard Law School and NBERMARCH 2019This policy proposal is a proposal from the author(s). As emphasized in The Hamilton Project’soriginal strategy paper, the Project was designed in part to provide a forum for leading thinkersacross the nation to put forward innovative and potentially important economic policy ideasthat share the Project’s broad goals of promoting economic growth, broad-based participationin growth, and economic security. The author(s) are invited to express their own ideas in policypapers, whether or not the Project’s staff or advisory council agrees with the specific proposals.This policy paper is offered in that spirit.The Hamilton Project Brookings1
AbstractOn any given day, there are approximately half a million individuals in custody awaiting trial in the United States, nearlydouble that of any other country. This high rate of pretrial detention has contributed to concerns regarding the effectivenessand constitutionality of the current bail system. In this paper, we review the empirical evidence documenting the costs, benefits,and distributional consequences of the current pretrial system. The available evidence suggests that there are economicallylarge costs of pretrial detention due to the significant collateral consequences of a criminal conviction on an individual’s labormarket outcomes, and the criminogenic (i.e., crime-inducing) effects of pretrial detention. There are, conversely, relatively smallbenefits due to the low costs of apprehending defendants who fail to appear in court. The costs of pretrial detention are alsodisproportionately concentrated among black defendants, particularly in courts that rely on relatively inexperienced judges tomake pretrial decisions.On the basis of this evidence, we recommend two broad sets of policy proposals that can both reduce our nation’s relianceon pretrial detention and improve pretrial decisions. The first set of proposals—to use behavioral nudges to decrease pretrialviolations, and to move the default away from pretrial detention and cash bail for low-risk defendants—are supported by enoughevidence to justify immediate nationwide implementation. The second set of proposals—to improve the pretrial decision-makingprocess through risk assessment tools and judge decision-aids, and to provide additional information on judge performance toboth judges and the general public—are supported by enough evidence to warrant pilot testing, with widespread implementationto follow if successful.2Proposals for Improving the U.S. Pretrial System
Table of ContentsABSTRACT2INTRODUCTION4THE CHALLENGE8THE PROPOSALS17QUESTIONS AND CONCERNS22CONCLUSION23AUTHORS AND ACKNOWLEDGMENTS24ENDNOTES25REFERENCES26The Hamilton Project Brookings3
IntroductionEach year, more than 11 million individuals aroundthe world are in prison awaiting trial. The UnitedStates leads all other countries with approximatelyhalf a million individuals detained before trial on any givenday, nearly twice as many as any other country in the world(Walmsley 2016). In per capita terms, the United States detainsbetween two and thirty-six times as many individuals beforetrial as other OECD countries (see figure 1; Walmsley 2016),with an estimated 65 percent of all jail inmates awaiting courtaction on a current charge and approximately 20 percent of thejail and prison population nationwide made up of individualsawaiting trial (Wagner and Sawyer 2018; Zeng 2018).The high rate of pretrial detention in the United States inrecent years is largely due to the increasing use of monetary orcash bail—release conditional on a financial payment—andthe corresponding decreasing use of release on recognizance(ROR), a form of release conditional only on one’s promiseto return to the court. The share of defendants assignedmonetary bail exceeded 40 percent in 2009 in the set of 40populous U.S. counties where detailed data are available,an 11 percentage point–increase from 1990 (see figure 2;Reaves 2013). The fraction of defendants released on theirown recognizance decreased by about 13 percentage pointsover the same period in these counties, with only 14 percentof defendants being released with no conditions in 2009.The widespread use of monetary bail directly leads to highpretrial detention rates in most jurisdictions because manydefendants are unable or unwilling to pay even relativelysmall monetary bail amounts. In New York City, for example,an estimated 46 percent of all misdemeanor defendants and30 percent of all felony defendants were detained prior to trialin 2013 because they were unable or unwilling to post bail setat 500 or less (New York City Criminal Justice Agency 2014).FIGURE 1.16012080400IcelanJap dSlo anveFin nialaIre ndlSw andedPo enUKGe land: Enrmglaanyndan Spad W inCz De alesech nmRe arkUKpu:NbliortNcoherwrnIre aylPo andrtuAu galLit striahuanUK Gre ia: Sc eceotSlo landvakNe Fran iathe cerlaBe ndslgiumSwitze Italyrl aSo Tu nduth rkeK yHu oreangCa arynaEst daonLu Austr iaxem aliNeb aw Z ourgealanIsra dLa e lMe tviaxicoUnite Chid S letatesPretrial detention rate per 100,000 individualsPretrial Detention Rates in OECD CountriesSource: Walmsley 2016.Note: Pretrial detention rates include all individuals who are deprived of liberty following a judicial or other legal process but who have not been definitelysentenced by a court for an offense. In almost all cases, the original data come from either the national prison administration of the country concerned, orthe ministry responsible for the prison administration. The estimate for the United States excludes prison populations in overseas territories. The pretrialpopulation rate for the Netherlands is based on data from 2013. The estimates for all other countries use data from 2014, 2015, or 2016. See Walmsley(2016) for additional details on the data and variable definitions.4Proposals for Improving the U.S. Pretrial System
Pretrial detention and cash bail policies must balance thecosts of detention, including harms to detainees, with thebenefits of reducing pretrial crime and failures to appear incourt. But the high rate of pretrial detention has contributedto concerns regarding the effectiveness and constitutionalityof the current bail system. Critics argue that pretrial detentionincreases the pressure for defendants to accept unfavorableplea bargains, which can increase the risk of wrongfulconviction. Critics also argue that excessive bail conditionsand pretrial detention can disrupt defendants’ lives, puttingjobs, housing, and child custody at risks. As one defenselawyer explained to the New York TimesOur clients work in service-level positions where ifyou’re gone for a day, you lose your job. People in needof caretaking—the elderly, the young—are left withoutcaretakers.People who live in shelters, where if they miss theircurfews, they lose their housing. Folks with immigrationconcerns are quicker to be put on the immigrationradar. So when our clients have bail set, they suffer onthe inside, they worry about what’s happening on theoutside, and when they get out, they come back to aworld that’s more difficult than the already difficultsituation that they were in before (Pinto 2015).These critics also argue that many jurisdictions set bailwithout an adequate consideration of, and tailoring to, thedefendant’s ability to pay; as a result, they claim that pretrialdetention is determined by a defendant’s wealth, not bythe defendant’s risk to the community, thus exacerbatingsocioeconomic disparities. These concerns led theDepartment of Justice to recently conclude that the pretrialsystems in many jurisdictions “are not only unconstitutional,but . . . also constitute bad public policy” (U.S. Department ofJustice 2016).A second set of concerns is that there are significantdisparities in bail conditions and pretrial detention ratesacross seemingly identical defendants, both across andwithin jurisdictions. There are significant differences, forexample, in the detention rates across U.S. counties even afteraccounting for demographic and charge characteristics ofdefendants, with counties such as Harris County in Texas andOrange County in California detaining 48 to 53 percent moredefendants, respectively, than counties such as MiddlesexCounty in New Jersey and Kings County in New York (seepanel A of figure 3; Reaves 2013). There are also significantracial disparities in bail conditions and pretrial detentionamong seemingly similar defendants, contributing to theoverrepresentation of certain demographic groups in thecriminal justice system. Controlling again for observablecharacteristics of defendants, Harris County in Texas, forexample, is 34 percent more likely to detain black defendantscompared to white defendants with the same observablecharacteristics, while Baltimore County in Maryland is1 percent less likely to detain black defendants compared towhite defendants (see panel B of figure 3; Reaves 2013).1FIGURE 2.Share of Defendants with Various Pretrial Outcomes, 1990–200950Release on cash/bondPercent of defendants40Held on bail3020Release on recognizance(ROR)10Conditional releaseDetainedMiscellaneous urce: State Court Processing Statistics, Bureau of Justice Statistics [BJS] 1990–2009; authors’ calculations.Note: Data are from the 40 largest counties in the United States. “Release on Cash/Bond” includes defendants who were released under somemonetary conditions such as a surety bond, a full cash bond, a deposit bond, a property bond, an unsecured bond, or a combination of conditionalrelease and surety bond. “Held on Bail” includes defendants who were assigned bail, but who did not post it and remained detained. “ROR,” or release on recognizance, includes defendants who were released on the promise to return to court for their next scheduled hearing, with no financialliability if they fail to appear. “Conditional Release” includes defendants who were released under conditions such as monitoring or supervision. “Detained” includes defendants who were denied bail or held under another charge or for other reasons. “Miscellaneous Release” includes defendantswho were released in response to a court order placing limits on a jail’s population or under a type of release other than the specified above. SeeReaves (2013) for additional details on the data and variable definitions.The Hamilton Project Brookings5
FIGURE 3A.FIGURE 3B.Unexplained Pretrial Detention Rates, bySelected CountyUnexplained Racial Gaps in PretrialDetention Rates, by Selected CountyHigher black pretrial detention rateHarris, TXOrange, CASan Bernardino, CALos Angeles, CAVentura, CADallas, TXMilwaukee, WIFranklin, OHWake, NCCook, ILEl Paso, TXMaricopa, AZTarrant, TXPima, AZMarion, INPrince George, MDShelby, TNOakland, MIHonolulu, HIMontgomery, MDOrange, FLWayne, MISalt Lake, UTSuffolk, NYSt Louis, MOHillsborough, FLHartford, CTDade, FLKing, WAHamilton, OHNew York, NYBaltimore (County), MDFairfax, VABroward, FLCuyahoga, OHBronx, NYEssex, NJKings, NYMiddlesex, NJOrange, CAHarris, TXHonolulu, HIVentura, CALos Angeles, CASan Bernardino, CAEl Paso, TXPima, AZMilwaukee, WIFranklin, OHWake, NCCook, ILTarrant, TXSuffolk, NYDallas, TXPrince George, MDSt Louis, MOMaricopa, AZWayne, MIHartford, CTFairfax, VAOakland, MIShelby, TNMontgomery, MDMarion, INOrange, FLBaltimore (County), MDSalt Lake, UTHillsborough, FLHamilton, OHDade, FLNew York, NYBroward, FLCuyahoga, OHBronx, NYKings, NYKing, WAEssex, NJMiddlesex, NJ0204060Pretrial detention rate (percent)Source: State Court Processing Statistics, BJS1990–2009; authors’ calculations.Note: Data show pretrial detention rates after controllingfor defendant age, gender, most serious arrest chargetype, total prior arrests, number of prior felony arrests,prior instances of failures to appear in court, total priorconvictions, and the number of prior felony convictions.We report the coefficients on the 40 county fixed effects,normalized so that the smallest fixed effect equals zero.6Proposals for Improving the U.S. Pretrial System-20020Racial gap in white and blackpretrial detention rates (percent)Source: State Court Processing Statistics, BJS 1990–2009; authors’ calculations.Note: The racial gap is the difference in white and blackpretrial detention rates after controlling for defendantage, gender, most serious arrest charge type, total priorarrests, number of prior felony arrests, prior instances offailures to appear in court, total prior convictions, numberof prior felony convictions, and county fixed effects. Wereport the coefficients on the 30 county fixed effectsinteracted with an indicator for a defendant being black.See Reaves (2013) for additional details on the data andvariable definitions. New York, NY, refers to the county andborough of Manhattan; Bronx, NY, refers to the county andborough of the Bronx.40
The accumulation of these issues has led to a flurry ofattempts to change the existing pretrial system, with aflood of lawsuits challenging the constitutionality of moneybail. For example, in April 2017, a federal judge in Houstonissued a preliminary injunction on the current bail systemin Harris County, Texas. Similar lawsuits are under wayin many other large cities across the country. In addition, anumber of jurisdictions have begun exploring alternatives topretrial detention, such as electronic or in-person monitoringfor low-risk defendants, and the use of risk assessment toolsto more accurately predict offender risk. New York City, forexample, has earmarked substantial funds to supervise lowrisk defendants instead of requiring them to post bail or facepretrial detention. A wave of community-based efforts tochange the current pretrial system has also swept the country,with charitable bail organizations like the Bronx FreedomFund and the Brooklyn Community Bail posting bail forindividuals held on misdemeanor charges when bail is set at 2,000 or less.Others claim that the bail system is operating as designed,and that releasing more defendants would increase pretrialflight and endanger public safety. For example, advocates ofthe current system, such as former U.S. solicitor general PaulClement, have argued that the money bail system “allowsindividuals of all financial means to leverage their socialnetworks and community ties to obtain pretrial release” (U.S.Department of Justice 2016, 3).In this paper we provide an overview of the goals of thepretrial system and how it operates in practice today. Wethen review the empirical evidence documenting the costs,benefits, and distributional consequences of the currentpretrial system. On the basis of this review, we conclude thatthere are economically large costs of pretrial detention—and,by extension, the use of cash bail—due to the significantcollateral consequences of having a criminal conviction onlabor market outcomes as well as the criminogenic effectsof pretrial detention (Dobbie, Goldin, and Yang 2018; Leslieand Pope 2017). In contrast, there are relatively small benefitsto pretrial detention due to the low costs of apprehendingdefendants who fail to appear in court (Dobbie, Goldin, andYang 2018). Taking a range of costs and benefits into account,the existing evidence suggests that we should detain far fewerindividuals before trial than we currently do.The existing evidence also suggests that the current pretrialsystem contributes to inequalities and inefficiencies in thecriminal justice system. In many jurisdictions, otherwisesimilar defendants are treated in significantly different ways,both by different judges in the same court (Dobbie, Goldin,and Yang 2018; Yang 2017) and by the same judge in differentcases (Kleinberg et al., 2018).The costs of pretrial detention are also disproportionatelyconcentrated among black defendants, particularly in courtsthat rely on less-experienced judges to make pretrial detentiondecisions (Arnold, Dobbie, and Yang 2018). Put simply, theexisting evidence suggests that the current pretrial system isboth unfair and inefficient.On the basis of this evidence, we recommend two sets ofpolicy proposals that can reduce our nation’s reliance onpretrial detention and improve pretrial release decisionsmore generally. The first set of proposals—to use behavioralnudges to decrease pretrial violations and to move the defaultaway from pretrial detention for low-risk defendants—are supported by enough evidence to justify immediatenationwide implementation. There is increasing evidence, forexample, that inexpensive behavioral nudges like text messagereminders can significantly reduce failure-to-appear rateswithout the need for pretrial detention, leading to substantialsocial benefits at virtually no cost to the public (Cooke et al.2018). The evidence also supports the release of many morelow-risk defendants even without these behavioral nudges,because the social costs of pretrial detention are significantlyhigher than the social benefits, at least at current high levels ofpretrial detention. Consistent with these ideas, California andNew Jersey, among other states, have eliminated or curtailedthe use of monetary bail, with the hope of decreasing pretrialdetention rates among low-risk defendants.Our second set of proposals—to improve the pretrialdecision-making process through risk assessment tools andjudge decision-aids, and to provide additional information onjudge performance to both judges and the general public—aresupported by enough evidence to justify pilot testing, withwidespread implementation to follow if successful. Providingjudges with risk assessment tools, for example, may helpjudges more accurately discern the potential risk of releasinga particular defendant and lead to more-accurate and moreappropriate pretrial detention decisions (e.g., Kleinberg et al.2018; Laura and John Arnold Foundation 2016). Providingjudges and the general public with information on pastpretrial decisions and the best practices in other courts maysimilarly improve judges’ decision making and lead to betterpretrial detention decisions, while simultaneously decreasingracial and socioeconomic disparities.We also note that there is significant public support forreforming the pretrial system in the United States. In asurvey of registered voters in 2018, 76 percent of respondentssupported the use of citations for low-level, nonviolentoffenses as opposed to arrest and booking, while 72
This high rate of pretrial detention has contributed to concerns regarding the effectiveness and constitutionality of the current bail system. In this paper, we review the empirical evidence .
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