Most criminal defendants have a right to be released prior to trial, with exceptions made only for those accused of the most serious and dangerous crimes. Yet many stay in jail because they can't meet conditions of release, which often are monetary. Courts determine conditions of release based on safety and flight risk. But judges usually have little information about the risks defendants pose to guide these pretrial decisions.
That's changing in a growing number of states, however. Lawmakers in at least 11 states now provide statewide guidance to judges on using results of a risk assessment in pretrial decision making. While considerations of risk have guided legislative policies and how courts exercise discretion in pretrial release, new scientific tools are making these determinations more empirical and reliable.
Lawmakers in Colorado last year addressed many aspects of pretrial release, including risk assessment, in legislation sponsored by then-Speaker Pro Tern Claire Levy (D). The new law requires courts to use individualized, evidence-based decision-making practices when setting bonds and other conditions of release. In Colorado and elsewhere, conditions typically include commercial or other secured bonds, cash, property and supervision. The law presumes that all those in custody for bailable offenses be released under the "least-restrictive conditions," while allowing conditions that address specific concerns. Fifteen states have such requirements.
The Colorado law also allows those granted but unable to pay the financial bond to ask the court seven days after the bond was set to reconsider requiring the monetary condition of release. Levy said this is intended to reduce the significant number of people who haven't been convicted of a crime but are in jail because they can't afford bail, even though they don't pose a risk of flight or a danger to public safety.
The Role of Research
"We've learned that assessment can reduce the number of low-risk people in county jails, and help courts distinguish those who pose the greatest risk," says Anne Milgram, vice president of criminal justice for the Laura and John Arnold Foundation in New York. Milgram, who served as New Jersey's attorney general before joining the Arnold Foundation, noted the Foundation's research revealed that nearly half of the highest-risk defendants were obtaining release before trial. Yet, 90 percent of jurisdictions today do not use risk assessment instruments that...