Criminal Justice - Bail & Pretrial Practices
Overview
Pretrial risk assessment is used to determine whether a defendant should be released prior to court appearance, and if so, under what conditions (such as cash bail, electronic monitoring, periodic check-in with the court, urinalysis, restitution, community service, counseling, etc.):
- will the defendant show up in court at the appointed time?
("Appearance Rate"; FTA = Failure to Appear)
- will the defendant commit another crime prior to appearing in court?
("Safety Rate", NCA = New Criminal Activity)
For a brief summary of cash bail and pretrial issues in Pennsylvania, see "The Pipeline to Prison: Pretrial Reform" (June 2018).
- Bail Basics in Pennsylvania - a law office description of how cash bail typically works in Pennsylvania
Pretrial Rules in Pennsylvania
Problems / Issues with Cash Bail
- The Cash Bail Crisis in Allegheny County (ACLU news release)
- Punishing Poverty: Cash Bail in Allegheny County (ACLU report: Oct. 2019)
- Bail Reform - The John Oliver Experience (youtube: 17:45, June 7, 2015)
John Oliver explains why America's bail system is better for the reality tv industry than it is for the justice system.
- Brave New Films - short videos on Bail
- TED Talk: Robin Steinberg: What if we ended the injustice of bail?
- America's outcasts: the women trapped in a cruel cycle of exploitation
(The Guardian, June 29, 2018)
How women are trapped into prostitution by cash bail bond.
- John Legend and Rashad Robinson: End money bail now (CNN: May 22, 2018)
- The Dangerous Domino Effect of Not Making Bail (The Atlantic, April 12, 2016)
- The Bail Trap (New York Times, August 16, 2015)
- The Kalief Browder Story (available on netflix) Kalief Browder took his own life in 2015 at the age of 22, after being held in jail for nearly three years without trial for a crime he did not commit.
www.youtube.com/watch?v=Ri73Dkttxj8 (movie trailer)
www.youtube.com/watch?v=3VchmU5NP_U (Democracy Now follow-up)
- Lehigh County Bail guidelines
- Lehigh County Approved Bail Agencies
- Northampton County - Court Costs, Fines and Fees (PDF)
Cash Bail Reform - Advocacy
- Releasing people pretrial doesn't harm public safety (Prison Policy Initiative, Nov. 17, 2020)
This study looks at 13 jurisdictions - four states, as well as nine cities and counties. When these states, cities, and counties began releasing more people pretrial, there were no corresponding waves in crime.
- People's Hearing on Bail and Pretrial Punishment, Philadelphia
January 20 event held at Bible Way Baptist Church, organized by ACLU, Philly Bail Fund, the Philly Community Bail Fund, the #No215Jail Coalition, POWER Interfaith/Live Free, and others.
- ACLU announcement
- Facebook Event
- Twitter Comments
- Livestream Video Recordings (PhillyWeRise): video1 (14:02); video2 (1:02:33)
- Petition to End Cash Bail in Philadelphia
- #No215Jail Coalition - Philadelphia campaign to end cash bail
- Bail Bond resources: could this be a useful model for Lehigh Valley?
- National Bail Out - is "a formation of Black organizers who are committed to building a community based movement to end pretrial detention and ultimately mass incarceration."
- America's cash bail system is a disgrace - and how to get rid of it (Apr. 21, 2016)
- State Innovation Exchange - Criminal Justice Reform (including bail)
Pretrial Reform - Resources and Examples
- Pretrial Justice Institute - now advocates for ending the use of risk-assessment tools; also provides resources on ending cash bail and related topics
- An Organizer's Guide to Confronting Pretrial Risk Assessment Tools in Decarceration Campaigns (Community Justice Exchange: Dec. 2019, 54 pages)
- The National Association of Pretrial Service Agencies (NAPSA) has a number of publications that discuss best practices for pretrial assessment and bail
- RJDToolkit.org: A Diversion Toolkit for Communities - Precharge Restorative Justice Diversion
RJD occurs at the pre-charge diversion point of the juvenile legal system.
- Fairfax judge rules cash bond unconstitutional (Virginia Mercury: Nov. 13, 2020)
A circuit court judge in Fairfax appears to be the first in Virginia to rule that keeping an indigent defendant in jail in lieu of a cash bond is unconstitutional, writing that it violates the Due Process Clause by forcing poor people awaiting trial to remain confined in jail while the wealthy walk free.
- Civil Rights and Pretrial Risk Assessment Instruments (Upturn, Inc. December 2019)
Pretrial risk assessment instruments often appear to function as a substitute for broader or more fundamental changes.
- Impact of Risk Assessment on Judges' Fairness in Sentencing Relatively Poor Defendants (SSRN: Jan. 15, 2019)
When risk assessment information was provided to judges, the likelihood of incarceration was reduced for relatively affluent defendants, but the same risk assessment information increased the likelihood of incarceration for relatively poor defendants
- Vision for Justice: 2020 and Beyond
(The Leadership Conference: Civil Rights Corps, Sept. 2019; 69-page report)
see "Plank #2" of this report (pages 15-18): "Create a new framework for pretrial justice"
- The Bail Project: After Cash Bail
This report provides a specific blueprint for an alternative to our current cash bail system.
- Questions and Best Practices for Reducing Jail Population (Prison Policy Initiative, May 2019)
This report includes resources on pretrial practices, fines and fees, and other policies that lead to excessive incarceration.
- What Changed After D.C. Ended Cash Bail (NPR: Sept. 2, 2018)
- Washington, DC Pretrial Facts and Figures (2014-2017) (DC Pretrial Services Agency, March 2018)
- Release Rates for Pretrial Defendants in Washington, DC (2017)
- Release Rates for Pretrial Defendants in Washington, DC (2016)
- When it comes to pretrial release, few other jurisdictions do it D.C.'s way
(Washington Post, July 4, 2016)
Washington, DC, releases about 94% of offenders pretrial without cash bail (but often with other conditions), and with results that are typically just as effective as cash bail for FTA and NCA.
(See "A Framework for Pretrial Justice Reform" (page 44), for comparison with other places that release at least some offenders without cash bail.)
- Philadelphia City Council Resolution to End Cash Bail
- Larry Krasner (Philadelphia District Attorney): prosecutors will no longer seek cash bail for people accused of some misdemeanors and nonviolent felonies (Feb. 21, 2018)
- Larry Krasner memo - which recommends no cash bail for non-violent offenses
(February 15, 2018).
Note, however, that judges don't necessarily follow the no-cash-bail recommendation of prosecutors
- Philadelphia economic impact study: the city could save $75 million a year by ending cash bail and sending thousands of people arrested each year for nonviolent, low-level crimes home to await their court dates. (Oct. 26, 2017)
- Recent Research on Cash Bail and Pretrial Detention (presentation slides: Sept. 12, 2016)
Summarizes significant issues with cash bail system in Philadelphia and problems with implementation of alternatives to cash bail.
- California Bail Reform - recent news reports
- New Jersey Criminal Justice Reform (CJR) - reports, publications, and news stories on New Jersey's bail reform, including this annual report:
- 2017cjrannual.pdf - 2018 Annual Report on New Jersey's Criminal Justice Reform (CJR) that almost eliminates cash bail, including detailed description of how the system works.
- Criminal justice (bail) reform in New Jersey (Dec. 30, 2016)
- New Jersey Bail Reform - other recent news reports
- Illinois law to change rules for paying cash to get out of jail (June 9, 2017)
- Pretrial Decision-Making: How A Model Pretrial Services Program Changed Allegheny County's Criminal Justice System (PDF: Allegheny County 2014)
- A Framework for Pretrial Justice: Essential Elements of an Effective Pretrial System and Agency (PDF, February 2017)
Other related documents from the National Institute of Corrections
- 5th Judicial District of Pennsylvania: Pretrial Supervision, Measuring What Works (Allegheny County PA - 2017)
- What do Criminal Justice Professionals Think About Risk Assessment at Pretrial?
(Arnold Ventures: 2017)
Other Pretrial Resources from Arnold Ventures.
Consequences of Pretrial Detention
- State Policy Implementation Project (American Bar Association)
Pretrial release reduces risk of FTA (failure to appear) and NCA (new criminal activity).
- Pretrial Criminal Justice Research (Arnold Ventures: Nov. 2013)
Pretrial incarceration is strongly correlated with recidivism and longer jail or prison sentences.
- Pretrial Justice Center - links to research studies on a number of topics related to pretrial practices.
- The Harmful Ripples of Pretrial Detention (Arnold Ventures)
- The Initial Collateral Consequences of Pretrial Detention: Employment, Residential Stability, and Family Relationships (SSRN: Sept. 12, 2022)
- How Misdemeanors Turn Innocent People Into Criminals (The Intercept: Jan. 13, 2019)
- After Cash Bail: A Framework for Reimagining Pretrial Justice (The Bail Project: 2020)
Most Americans recognize that our current pretrial system must change. This document outlines a roadmap to a more just, equitable, and humane pretrial system.
- Electronic Monitoring (The Bail Project: PDF) Like cash bail, pretrial electronic monitoring is a flawed policy that does not enhance public safety or improve the likelihood that a person returns to court. Instead, it punishes people with low incomes, disproportionately impacts people of color, and creates administrative burdens. If used, this mode of surveillance should be strictly regulated and used only as a last resort before detention to prevent willful flight or imminent harm to identifiable persons.
- Other Resources on Pretrial Detention (Prison Policy Initiative)
Plea Bargaining
- New research examining plea deals finds multiple problems (NPR: Nov. 30, 2022)
This is a brief overview of the reports (below) funded by the MacArthur Foundation on plea bargaining in Philadelphia, Milwaukee, and St. Louis. The research found that nearly half of the assistant district attorneys surveyed in the Philadelphia District Attorney's Office said they believe innocent defendants sometimes or even often take plea deals.
Also, 55% of Philadelphia assistant district attorneys surveyed for the study acknowledged that people of color tend to receive harsher plea offers.
- An Exploration of Prosecutorial Discretion in Plea Bargaining in Philadelphia
(Urban Institute [MacArthur Foundation]: Nov. 29, 2022)
- Exploring Plea Negotiation Processes and Outcomes in Milwaukee and St. Louis County
(Safety and Justice Challenge [MacArthur Foundation]: Nov. 29, 2022)
- Confronting the Plea: Four Stories -- also Frequently Asked Questions about Plea Bargaining and Other Resources (PBS Frontline: June 17, 2004)
- Coercive Plea Bargaining Has Poisoned the Criminal Justice System.
(ACLU: January 13, 2020)
- Fictional Pleas (Indiana Law Journal 94:3, 2019)
This report makes the case that plea bargaining is just a symptom of a broken adversarial justice system and laws that impose unjust or excessive punishment.
- The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (July 2018) The 'trial penalty' refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system.
Criminal Justice - Risk Assessment Tools
- Although risk assessment tools have been widely used for a number of years and often have reduced the number of people detained in jail or prison, they are inevitably racially biased and there are better alternatives. See The Case Against Pretrial Risk Assessment Instruments and What If? Ten Questions for Sparking Local Pretrial Change from the Pretrial Justice Institute.
Also see the Bail Project's policy brief Pretrial Algorithms (Risk Assessments) which opposes the use of pretrial risk assessment to help decide whether an individual is incarcerated pretrial, based on evidence that risk assessment tools disproportionately harm people of color, oversimplify complex individual and case outcomes, undermine standards of procedural justice, and rely on data that is inaccurate, outdated, and unreliable.
- Lehigh County, PA, uses a (proprietary) subjective Risk Assessment (pretrial) and Wisconsin Risk and Needs Assessment tools (for reentry)
- Northampton County, PA, uses a pretrial risk assessment tool that is similar to New Jersey's.
- Risk Assessment Tool Database (Berkman Klein Center)
The Risk Assessment Tool Database collects public information about the design and implementation of risk assessment instruments widely used across the U.S. criminal justice system and tracks associated judicial and legislative developments.
Specific tools include:
- Public Safety Assessment (PSA)
- Wisconsin - Wisconsin Risk/Needs (WRN) & Wisconsin Risk and Needs-Revised (WRN-R)
- Ohio - Ohio Risk Assessment System, including the
- Ohio Risk Assessment System-Pretrial Assessment Tool (ORAS-PAT),
- Ohio Risk Assessment System-Community Supervision Tool (ORAS-CST),
- Ohio Risk Assessment System-Community Supervision Screening Tool (ORAS- CSST),
- Ohio Risk Assessment System-Prison Intake Tool (ORAS-PIT), and
- Ohio Risk Assessment System-Reentry Tool (ORAS-RT)
Tools descriptions and evaluation:
- Public Safety Assessment (PSA) - overview and detailed description of this data-driven risk assessment tool (now used in Allegheny County, PA, in New Jersey, and about 20 other places)
- "Post Bail" (NBC news: Aug. 22, 2017)
Extended discussion of risk assessment tools used in lieu of cash bail.
- Moving Beyond Money: A Primer on Bail Reform (PDF - Harvard Law School: Oct. 2016)
Extended discussion of what works and what doesn't as alternatives to cash bail (p. 14ff).
- Using Offender Risk and Needs Assessment Information at Sentencing
- Risk and Needs Assessment and Race in the Criminal Justice System, May 31, 2016
By the CSG (Council of State Governments) Justice Center Staff
- Big data may be reinforcing racial bias in the criminal justice system (Washington Post: Feb. 10, 2017)
- Risk Assessment in Criminal Sentencing, May 31, 2016
- What Works in Reentry Clearinghouse
- Risk-instruments-Guide.pdf - see esp. Table 3 (p.15) for evaluation of Ohio & Wisconsin tools.
- ORAS_FinalReport.pdf - compares Ohio and Wisconsin tools (see esp. pp.34,40).
Bail Bond Insurance Industry
Solitary Confinement
- Solitary Confinement: with John Oliver (20-min. documentary video)
- "We just needed to open the door": a case study of the quest to end solitary confinement in North Dakota (Health Justice: Oct. 18, 2021) In 2015, after North Dakota correctional officials and staff members were exposed to Norwegian Correctional Service philosophy, policies, and practices, North Dakota officials swiftly implemented policy changes. Following the reforms, both incarcerated persons and staff members reported improvements in their health and well-being and enhanced interactions with one another, and less exposure to violence.
- Inventing Solitary - panel discussion hosted by the Phialdelphia Inquirer, recorded on 7/28/2022, explores the Philadelphia origins of the American prison system and traces the evolution of solitary confinement from Walnut Street to penitentiaries across the nation. Panelists include Akeil Robertson-Jowers, a Philadelphia artist who was formerly incarcerated; Robert Saleem Holbrook, formerly incarcerated and now Exec. Director of Abolitionist Law Center; and Inquirer writer Samantha Melamed.
Watch the video recording here.
-- Also see Philadelphia Inquirer's report Inventing Solitary, investigating the anti-Black origins of solitary confinement, and the practice's mutations and euphemistic renaming under "segregated housing" and the "Intensive Management Unit." Read the report here.
- Last Days of Solitary - FRONTLINE documentary (PBS: 2017; 1:53:11)
In this 2017 documentary, FRONTLINE goes inside one state's ambitious attempt to decrease its use of solitary and takes a look at what happens when prisoners who have spent considerable time in isolation try to integrate back into society. Watch on youtube here, or on PBS here.
- Solitary Nation - FRONTLINE documentary (PBS: 2014; 53:40)
"Solitary Nation" offers an up-close, graphic look at a solitary confinement unit in Maine's maximum-security prison with firsthand accounts from prisoners and staff whose lives are forever altered by this troubled system.
- Unlock the Box Campaign - a national campaign to end solitary confinement
- Solitary Watch - a nonprofit national watchdog group that investigates, documents, and disseminates information on the widespread use of solitary confinement in U.S. prisons and jails.
- Community Care Starts Here: A Town Hall on Ending Solitary Confinement
(PA Stands Up: recorded 6/16/2022)
- Solitary Survivor - Jose Rivera (Straight Ahead video clip)
Jose Rivera of #LehighCounty speaks about his experience in solitary. He said being in front of the camera brought him back to the camera in his solitary cell, monitoring his every move 24/7 on the so-called gang unit. The psychological effects of torture will in some ways never leave.
- Solitary Survivor - Luna Fernandez (Straight Ahead video clip)
"It takes everything from you." This is how Luna Fernandez explained the sights, sounds, and feelings of solitary confinement. Solitary is a torture tool that psychologically changes people.
- Solitary Survivor - Darnell Scott (Straight Ahead video clip)
"Caged. Loneliness. Strained. Dark Sad." These are the words that Darnell Scott used to describe solitary from his experience. While the light glared at all hours of the day and night, Darnell said it was dark in solitary because, "I was just alone."
- Albert Woodfox's decades in solitary confinement
(WHYY-RadioTimes: August 20, 2022; 49-min. audio interview)
- Shedding Light on "the Hole": A Systematic Review and Meta-Analysis on Adverse Psychological Effects and Mortality Following Solitary Confinement in Correctional Settings
(Frontiers in Psychiatry: Aug. 19, 2020)
Solitary Confinement - "Step-Down" programs
Also see other Resources on Criminal Justice Reform.
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