The Imposition of Pretrial Conditions on Released Federal Defendants: The Overuse of Conditions Without Providing Any Measurable Benefits

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/00938548231206829
• Author: Thomas H. Cohen,William Hicks
• Date: 01 December 2023
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 12, December 2023, 1852 –1873.

DOI: https://doi.org/10.1177/00938548231206829

Article reuse guidelines: sagepub.com/journals-permissions

© 2023 International Association for Correctional and Forensic Psychology

1852

THE IMPOSITION OF PRETRIAL CONDITIONS

ON RELEASED FEDERAL DEFENDANTS

The Overuse of Conditions Without Providing Any

Measurable Benefits

THOMAS H. COHEN

Administrative Office of the U.S. Courts

WILLIAM HICKS, JR.

District of Nevada Pretrial Services Office

In the federal system, defendants placed on pretrial release may have multiple conditions imposed on them which are aimed

at ensuring court appearances and maintaining public safety. In general, little is known about the number of conditions

imposed on released federal defendants, the extent to which conditions are associated with pretrial risk, and the potential of

these conditions to maximize court appearances and minimize pretrial crime. This study seeks to address these issues by

examining the imposition of pretrial conditions on 223,260 released federal defendants. The results show that defendants

received an average of about nine conditions and that the association between conditions and a defendant’s pretrial risk clas-

sification was relatively modest. The results also show conditions having no significant relationship with reductions in the

likelihood of pretrial crime or missed court appearances; however, the probability of being revoked increases with the number

of conditions imposed.

Keywords: risk assessment; criminal justice system; recidivism; assessment; decision-making

When a person is arrested and charged with a criminal offense, judicial officials must

determine whether that person (that is, the defendant) should be released back into

the community or detained pretrial (American Bar Association, 2007). The decision to

release or detain a defendant represents a crucial point within the criminal justice process

(Carr, 2017). Defendants facing pretrial incarceration are beset with numerous adverse con-

sequences, including the curtailment of their personal liberties and increases in their

AUTHORS’ NOTE: The authors would like to thank Amaryllis Austin, Trent Cornish, Sara Valdez Hoffer,

Christopher Lowenkamp, and Vanessa Starr for their helpful suggestions and comments. Special thanks to

Ellen Fielding and Suzelle Fiedler for their careful editorial reviews. Correspondence concerning this article

should be addressed to Thomas H. Cohen, Probation and Pretrial Services Office, Administrative Office of the

U.S. Courts, One Columbus Circle, NE, Washington, DC 20544; e-mail: thomas_cohen@ao.uscourts.gov.

1206829CJBXXX10.1177/00938548231206829Criminal Justice and BehaviorCohen, Hicks / The Imposition of Pretrial Conditions

research-article2023

Cohen, Hicks / THE IMPOSITION OF PRETRIAL CONDITIONS 1853

likelihood of conviction and incarceration (Dobbie et al., 2018; Gupta et al., 2016; Heaton

et al., 2017; Lowenkamp et al., 2013).

While the pretrial release decision and its repercussions represent a topic of crucial inter-

est, relatively less attention has been expended on the circumstances in which defendants

are released pretrial (Bechtel et al., 2017; Levin, 2007; Mamalian, 2011). Specifically,

defendants placed on pretrial release can be subjected to a multitude of restriction, monitor-

ing, and treatment conditions which are ostensibly imposed to maximize court appearances

and minimize pretrial crime (Clarke, 1988). While some research has focused on the types

of conditions imposed (e.g., location monitoring, substance abuse testing, substance abuse

treatment, and so on; see Bechtel et al. (2017) and Mamalian (2011)), there has been rela-

tively little research examining the number of conditions placed on released defendants and

the association between the quantity of conditions and a defendant’s proclivity for engaging

in pretrial misconduct.

The lack of research on this issue represents an important knowledge gap to address because

the quantity of conditions could serve as an indirect measure of supervision intensity. That is,

released defendants with more conditions could potentially be subjected to greater levels of

pretrial supervision than defendants with fewer conditions. Research on the efficacy of super-

vision intensity, however, has shown increased levels of supervision scrutiny having no asso-

ciation with improvements in community safety but higher correlations with technical

violations (Grattet & Lin, 2016; Hyatt & Barnes, 2017; Petersilia & Turner, 1990).

This study seeks to further enhance our understanding of the role of supervision intensity

by examining this issue at the pretrial stage through the application of pretrial conditions.

Specifically, it takes advantage of an administrative dataset of persons placed on release in

the U.S. federal system and examines the extent to which the number of conditions is asso-

ciated with pretrial risk and the potential of these conditions to maximize court appearances

and minimize pretrial crime. We chose to focus on the federal courts because findings from

this research could have important implications on judicial release decisions and pretrial

supervision at the federal level and perhaps even have applications for state courts.

OVERVIEW OF LITERATURE ON PRETRIAL CONDITIONS

Before examining conditions in the federal pretrial system, it is important to cover what

we know generally about pretrial conditions. Nearly all the extant literature focuses on the

types rather than number of conditions placed on released defendants. In general, the litera-

ture suggests that many conditions are applied in a blanket-like fashion and are often

imposed without consideration of a defendant’s risk of pretrial failure or criminogenic needs

(Bechtel et al., 2017). Moreover, there has been relatively little empirical research on the

efficacy of these pretrial conditions, and what research exists shows that many have not

worked as intended (Bechtel et al., 2017; Mamalian, 2011; VanNostrand et al., 2011;

VanNostrand & Keebler, 2009).

Among the various types of pretrial conditions, perhaps the most common involve moni-

toring or treatment interventions. Substance abuse testing and location monitoring encom-

pass some of the most frequent forms of monitoring conditions (Mahoney et al., 2001;

Pretrial Justice Institute, 2009, 2012; VanNostrand et al., 2011; VanNostrand & Keebler,

2009). Substance abuse testing has become a particularly commonplace tool to gauge

whether defendants are engaged in drug abuse while on pretrial release (Pretrial Justice

Institute, 2009, 2012; VanNostrand et al., 2011). Conversely, location monitoring involving