AUTHOR. Assistant Professor of Law, University of Georgia School of Law. For extremely helpful input, I am indebted to Laura Appleman, David Ball, Shima Baradaran Baughman, Richard Berk, Mitchell Berman, Stephanos Bibas, Kiel Brennan-Marquez, Jessica Eaglin, Barry Friedman, Lauryn Gouldin, Rachel Harmon, Paul Heaton, John Hollway, Mark Houldin, Douglas Husak, Samuel Issacharoff, Orin Kerr, Seth Kreimer, Jim Jacobs, Craig Konnoth, Joanna Langille, Sophia Lee, Youngjae Lee, Richard Lippke, Stephen Morse, Anna Roberts, David Rudovsky, Tim Schnacke, Larry Schwartztol, Jocelyn Simonson, Megan Stevenson, Alec Walen, Rebecca Wexler, Sam Wiseman, participants of the University of Pennsylvania Fellows' Workshop, participants of the Quattrone Center's Lunch Workshop Series, attendees of the bail panel at CrimFest 2016, and attendees of faculty presentations at Berkeley Law, Boston University School of Law, Brooklyn Law School, Louisiana State University Paul M. Hebert Law Center, Roger Williams University School of Law, Rutgers Law School, Sandra Day O'Connor College of Law, Southern Methodist University Dedman School of Law, University of Georgia School of Law, and University of Utah S.J. Quinney College of Law. For institutional support, I am grateful to University of Pennsylvania Law School, the Quattrone Center for the Fair Administration of Justice, and University of Georgia School of Law. Heather Richard and the editorial team at the Yale Law Journal provided invaluable editorial advice that much improved the piece. And, as always, I am most grateful to Maron Deering, whose patience is unending.
ARTICLE CONTENTS INTRODUCTION 492 1. A NEW REGIME OF PRETRIAL PREVENTIVE RESTRAINT 502 A. Origins of Pretrial Restraint for Dangerousness 502 B. The Third Generation of Bail Reform 507 II. DEFENDANTS AND NON-DEFENDANTS WHO ARE EQUALLY DANGEROUS 518 A. No Clear Constitutional Distinction 521 1. Pretrial Detention Doctrine 521 a. Gerstein and Probable Cause 521 b. Salerno and Civil Commitment 523 2. Pretrial Search Doctrine 526 B. No Clear Moral Distinction 534 1. "Moral Predicate" Theories 534 2. The Causal-Responsibility Argument 541 C. No Clear Practical Distinction 545 1. Benefits and Costs of Preventive Restraint 545 2. Diminished Costs 548 a. Bounded Restraint 548 b. Less Cost in Liberty 549 c. Notice and Opportunity 55i III. PARITY OF PREVENTIVE AUTHORITY 557 A. The Parity Principle in Action 557 1. What Risk Justifies Pure Preventive Restraint? 557 2. Policy Implications 560 3. A World with Parity 564 B. The Parity Principle as Benchmark 565 CONCLUSION 566 APPENDIX 568 INTRODUCTION
There is a nationwide movement underway to radically reconfigure the pretrial system. (1) The current system, which relies on money bail as the primary mechanism for pretrial release, results in the systematic detention of poor defendants. The scale of detention is vast. Approximately eleven million people are arrested each year; on any given day, around half a million of them sit in jail, awaiting trial. (2) Nearly all pretrial detainees have money bail set and would be released if they posted it. (3) Even at the lowest bail amounts, detention rates are high. (4) Reformers from across the political spectrum agree that a system that conditions liberty on wealth is both unjust and inefficient. At least ten states and forty counties have accordingly revised, or are in the process of revising, their pretrial law and policy--and in some cases their state constitutions. (5) If the pace of reform continues, the pretrial process across the nation will soon look very different.
The core reform goal is to untether pretrial detention from wealth and tie it directly to risk. To accomplish that objective, a growing number of jurisdictions are adopting actuarial risk-assessment tools to sort high-risk from low-risk defendants. (6) Until now, courts charged with setting bail and making pretrial custody decisions have, for the most part, assessed risk subjectively. Actuarial risk assessment is intended to improve the accuracy and consistency of these judgments.
It is hard to overstate the momentum behind this shift. A broad array of stakeholders, including national policy groups and large foundations, have advocated the adoption of pretrial risk assessment tools. The Laura and John Arnold Foundation, for instance, aims to ensure "that every judge in America will use a data-driven, objective risk assessment [for pretrial custody determinations] within the next five years." (7) It may succeed. Jurisdictions around the country are increasingly turning to risk assessment as the keystone of pretrial reform. (8)
The risk of core concern in today's pretrial policy debate is not, as it once was, the risk that defendants might abscond or tamper with witnesses. It is, instead, the risk that released defendants will commit other crimes. Reform opponents allege that defendants are too dangerous to be released into the community without significant restraint. The claim is not that they will skip court, harm witnesses, or otherwise obstruct prosecution. It is simply that they will commit new crimes unrelated to their pending charge. (9) In response, reformers assure stakeholders that actuarial risk assessment can reduce detention rates without compromising public safety.
There are many explanations for the reform movement's focus on danger. At a structural level, it reflects the broader turn toward incapacitation in criminal justice at the end of the twentieth century, and the risk-oriented, managerial approach to crime and punishment that Malcolm Feeley and Jonathan Simon dubbed "the new penology." (10) As a practical matter, flight risk may be less of a concern than it once was because it is hard to truly flee from justice in today's hyper-connected world. And in realpolitik terms, elected judges suffer much greater political costs when released defendants commit high-profile crimes than when they fail to show up for court.
Whatever the reasons, "[t]he goal of most criminal justice decisionmakers is to detain defendants who pose a risk to public safety--particularly those who appear likely to commit crimes of violence--and to release those who do not." (11) This is not to say that flight risk is unimportant, just that public safety has dominated the recent reform conversation. (12) In broad strokes, the central goal of the bail reform model has been to reduce pretrial detention by limiting it to the statistically dangerous.
This model holds great promise, but also raises an extremely difficult question: what probability that a person will commit unspecified future crime justifies detention, or even lesser restraints, like GPS monitoring? (13) For defendants who score in the top risk bracket on the Federal Pretrial Risk Assessment Instrument (PTRA), for example, the projected likelihood of rearrest for any type of crime in the pretrial period is ten percent. (14) Defendants classified as high risk by the Florida Pretrial Risk Assessment Instrument (FL PRAI) have a sixteen percent chance of rearrest in a six-month span. (15) And those classified as high risk for violence by the Public Safety Assessment (PSA), the most widely used tool in state systems, have about an eight percent chance of rearrest on a violent charge within six months. (16) Are these probabilities sufficient to justify detention? If not, what probability of future arrest is enough?
The question has received markedly little attention from modern reformers. A generation ago, pretrial restraint to prevent non-case-related future crime--what I will call, for simplicity, "preventive restraint"--was a matter of intense controversy. Critics argued that no probability of future crime was sufficient to authorize preventive detention. (17) Today's bail reform movement, by contrast, has assumed the legitimacy of pretrial preventive restraint and advocates preventive detention as a basic component of a model pretrial system. Advocacy groups like the American Civil Liberties Union (ACLU) have sporadically voiced concerns but have nonetheless signed on to the reform agenda. (18) Among academics, the turn to actuarial risk assessment has engendered both excitement and apprehension, but criticism has centered on its potential to exacerbate race and class inequalities. (19) There has been essentially no public debate about what degree of risk should be deemed sufficient to justify detention or other forms of restraint.
Recent events may soon bring that question to the fore. On January 1, 2017, New Jersey's comprehensive bail reform took effect, including a preventive detention regime that required an amendment to the state constitution. As cases move through the new system, New Jersey's courts are beginning to grapple with what quantum of risk is sufficient to justify detention. (20) Other states pursuing reform are not far behind. (21)
The adoption of risk assessment will require stakeholders to consider what degree of risk justifies restraint, moreover, because the new statistical methodology makes the question unavoidable in a way that it was not before. Many of the scholars who debated preventive detention a generation ago argued that useful prediction was impossible. (22) Laurence Tribe diagnosed an early preventive detention proposal as betraying "the inability to predict with even the slightest confidence" which defendants would commit future crime because, for lack of a better methodology, it relied on broad offense and criminal history categories as proxies for dangerousness. (23) Today's actuarial tools are far from perfect, but they are rapidly improving in sophistication and predictive power. By making it possible to formulate more precise legal standards for dangerousness, they also make it necessary to do so: the design of every risk assessment tool requires a decision about the statistical "cut point" at which a person will be deemed high risk, and detention recommended. (24) New...