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The Hidden Cost of the Bail System

Updated: Nov 9, 2021

If you were to think about jail, you might think it is filled with convicted criminals who pose a significant threat to public safety. You might even feel a sense of relief that dangerous people are behind bars. However, currently two thirds of the United States jail population is people who have not been convicted, but are awaiting trial! Many of the people detained are not a threat to society and there is no clear benefit to holding them in pretrial detention.

One huge factor in whether someone is held in jail awaiting trial is their ability to pay a monetary bail bond. Minorities and low-socioeconomic individuals are therefore disproportionately held in jail awaiting trial because they are unable to pay the bond. Not only are they detained before they are convicted, but pretrial detention can interfere with a defendant’s ability to assist in his own defense. There’s also evidence that many innocent people in jail awaiting trial plead guilty just to be released. Accepting a guilty plea even when innocent can be especially tempting if held in jail for an extensive period of time awaiting trial (for example, Kalief Browder was held in Riker’s awaiting trial for 3 years!).

In response to these concerns, a number of jurisdictions are beginning to replace the traditional bond system with pretrial service agencies that conduct risk and need assessments which impose certain release conditions (e.g. curfews, home detentions, substance use tests). Results of these assessments have been largely favorable in counties in Kentucky, California, and Illinois. Although this reform seems favorable, there is some controversy about possible racial or ethnic disparities in these pretrial risk assessments. Some have commented that risk tools may classify certain members of racial or ethnic groups as high risk because the assessment instruments often rely on residential stability and readily measurable risk factors for recidivism. Research on these risk assessment disparities however, are mixed. Thus, Marlowe, Ho, Carey, and Chadick (2020), sought to help bridge this gap by examining efforts by a trial court serving two neighboring counties in southern Mississippi to base pretrial release decisions on risk assessment rather than monetary bond.

In this study, participants were those 18 years or older who had been arrested in the 12th judicial district in Mississippi, had their arrest charges processed, and were administered the Risk and Needs Triage within two weeks of their arrest. Results of this study showed that pretrial detention averaged approximately 60 days with the risk assessment tool compared to other current detentions averaging approximately 90 and 180 days. Similarly, there were no racial disparities in risk prediction. There were however, inequalities in how long participants were detained. African Americans were detained approximately two weeks longer than Caucasian participants. Results also indicated that pretrial rearrest rates were 17% higher than a similar pretrial population. However, these recidivism results must be taken with a grain of salt due to the lack of comparison data. Therefore, risk assessment was associated with shorter pretrial detention, and fewer racial inequalities within risk prediction for release from pretrial detention.

Although there are still disparities even when using risk assessment in pretrial release decisions (e.g. detaining African Americans for longer, rearrest rates), this study still highlights one potential equalizer. This study illustrates that including risk assessment information in release decisions can help release marginalized people with little risk to public safety. Based on the results of this study, policy makers should seriously consider using risk assessment information rather than monetary bond to make release decisions as one step toward counteracting systematic biases within the justice system.

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