Pretrial Risk Assessment, Release Recommendations, and Racial Bias

• Published date: 01 September 2023
• DOI: http://doi.org/10.1177/00938548231174908
• Author: Samantha A. Zottola,Sarah L. Desmarais,D. Kamiya Stewart,Sarah E. Duhart Clarke,John Monahan
• Date: 01 September 2023
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 9, September 2023, 1255 –1278.

DOI: https://doi.org/10.1177/00938548231174908

Article reuse guidelines: sagepub.com/journals-permissions

© 2023 International Association for Correctional and Forensic Psychology

1255

PRETRIAL RISK ASSESSMENT, RELEASE

RECOMMENDATIONS, AND RACIAL BIAS

SAMANTHA A. ZOTTOLA

SARAH L. DESMARAIS

D. KAMIYA STEWART

Policy Research Associates, Inc.

SARAH E. DUHART CLARKE

RTI International

JOHN MONAHAN

University of Virginia School of Law

We examined how the presentation of risk assessment results and the race of the person charged affected pretrial court actors’

recommendations to release a person with or without conditions. A sample of 246 pretrial court actors read vignettes that

varied risk framing (success, failure), risk format (probability, frequency), risk level (low, high), and race of the person

charged (Black, White). Pretrial release recommendations did not differ as a function of framing or format overall or by race.

Pretrial court actors were more likely to recommend release with conditions compared with release without conditions in the

high- versus low-risk groups when the person was White but not when the person was Black. Findings fail to support changes

to the presentation of pretrial risk assessment results as strategies to enhance their impact on release recommendations and

underscore the need for efforts to ensure equitable application of risk assessment results for people of color.

Keywords: pretrial decision-making; risk presentation; risk assessment; pretrial reform; racial bias

INTRODUCTION

When people are charged with a criminal offense and booked into jail, they generally

must go before a judge or magistrate who decides during an initial appearance whether to

release or detain them in jail for the pretrial period (Jones, 2013). Following this hearing,

many people end up in pretrial detention (Page & Scott-Hayward, 2022). Indeed, between

65% and 75% of the total local jail population in the United States are people who have not

AUTHORS’ NOTE: All authors certify that they have no affiliations with or involvement in any organization

or entity with any financial interest or non-financial interest in the subject matter or materials discussed in this

manuscript. Work was conducted at Policy Research Associates, Inc. This research was supported by the John

D. and Catherine T. MacArthur Foundation’s Pretrial Risk Management Project. The content is solely the

responsibility of the authors. We would like to thank all the pretrial professionals who took the time to complete

our survey. Correspondence concerning this article should be addressed to Samantha A. Zottola, Policy

Research Associates, Inc., 345 Delaware Ave., Delmar, NY 12054; e-mail: szottola@prainc.com.

1174908CJBXXX10.1177/00938548231174908Criminal Justice and BehaviorZottola et al. / Pretrial Risk Presentation

research-article2023

1256 CRIMINAL JUSTICE AND BEHAVIOR

yet been convicted of a crime (Sawyer & Wagner, 2020; Zeng & Minton, 2021). People are

typically held pretrial either because a judge or magistrate made an outright decision to

detain them or because they failed to meet a condition of their pretrial release—most com-

monly, they could not make the bail payment required of them (Page & Scott-Hayward,

2022). Pretrial detention results in a host of negative consequences for a person’s legal case

including increased likelihood to engage in plea negotiations, to plead guilty (Heaton et al.,

2017; Kellough & Wortley, 2002; Sacks et al., 2015), to be convicted (Cohen & Reaves,

2007; Philips, 2012), to be sentenced to prison or jail, and to be given a longer sentence

(Heaton et al., 2017; Philips, 2012). These consequences of pretrial detention are not expe-

rienced equally by all. Research consistently demonstrates disparities in pretrial release

decision-making, in that people of color—and Black men, in particular—are more likely to

receive stricter conditions for release or be detained during the pretrial period (Arnold et al.,

2018; Demuth & Steffensmeier, 2004; Pinchevsky & Steiner, 2016; Schlesinger, 2005;

Wooldredge et al., 2015).

Pretrial reform efforts of the last decade have worked to reduce these disparities in pre-

trial release decisions and increase rates of pretrial release overall (Zottola et al., 2022). One

specific reform effort related to pretrial release decisions and recommendations has been

the implementation of pretrial risk assessment instruments. Results of rigorous investiga-

tions demonstrate that the use of pretrial risk assessment instruments can lead to reduced

use of bail and reduced rates of pretrial detention (Anderson et al., 2019; Cooprider, 2009;

Lowder et al., 2021), but that this is not always the case. Research conducted in other con-

texts suggests that how the results of risk assessments are presented to professionals can

affect their decisions (Hilton et al., 2005; Slovic et al., 2000). However, to our knowledge,

no studies to date have examined whether the way pretrial risk assessment results are pre-

sented affects the pretrial release recommendation, specifically. Furthermore, no studies

have explored whether this impact differs across racial subgroups, despite considerable

concern regarding racial disparities in the pretrial release decision. The current study aims

to address these gaps. In the sections that follow, we briefly review the research on the

impact of pretrial risk assessment results on pretrial release decisions and recommenda-

tions, followed by research on the impact of the presentation of risk assessment results,

focusing on the format and framing of assessment results.

THE PRETRIAL RELEASE DECISIONS

Roughly 24 to 72 hr after a person is arrested and booked into jail, they appear before a

judge or a magistrate (Baughman, 2017). At this initial appearance (which is sometimes

split across two separate hearings), the judge or magistrate informs a person of their rights

and the charges filed against them, determines whether there is probable cause to charge

them, appoints an attorney if needed, and makes a pretrial release decision (Baughman,

2017; Karnow, 2008; Stevenson & Mayson, 2017). The pretrial release decision may be one

of three options: release without conditions (often referred to as release on recognizance or

a personal recognizance bond), release with conditions, or detention (Baughman, 2017;

Karnow, 2008; Scott-Hayward & Fradella, 2019). When making the release decision, a

judge or magistrate must consider how likely the person is to return to court for later hear-

ings, and whether the person poses a threat to public safety (Baughman, 2017; Jones, 2013;

Karnow, 2008). Threat to public safety is typically operationalized as whether the person is