Tuesday, April 18, 2017

"Model" Bail Laws

After far too long, I’m finally posting the paper I’ve been working on dealing with pretrial release and detention. You can find it here.

In this generation of bail reform, jurisdictions are changing – both voluntarily and by force – their release and detention laws, policies, and practices. This paper answers the question, “If we change, to what do we change?”  Knowing this answer might help places that are still unsure of what a lawful, purposeful, in-or-out pretrial release and detention process should look like, and the steps required to create and to legally justify it.  

To me, the hard part about “model” bail laws isn’t necessarily what we should do to make sure we get good outcomes after a person is determined to be releasable. The hard part is re-drawing that initial line based on whom we want to release and whom we want to detain, which, in most cases means re-articulating both a narrow charge-based detention eligibility net and more refined further limiting process following fundamental American notions of fairness and liberty, all while infusing this generation of risk research into the mix. I’ve noticed a lot of people aiming at this target lately, and so I hope this helps with the overall conversation.

The whole issue is a bit more complicated than simply replacing charge with risk. In the end, you’ll see that the two have to work together. The paper is long because of that complexity, but you can skip to the end, where I lay out various templates of a release/detain dichotomy for a model based on the history, the law, the research, and the national standards. If you then want to know my justification for that model, you can read the other 190 pages. Jurisdictions certainly don’t have to use my model, but my hope is that in the future, jurisdictions will nonetheless see my justification, and then provide the same or similar justification for any changes to their laws.

Many people are asking where actuarial pretrial risk assessment instruments fit into all of this. The answer is that they are fabulous at helping with 99% of everything we are trying to achieve with pretrial release and detention. Nevertheless, my analysis concludes that we cannot use them solely to determine detention or detention eligibility. That seems pretty obvious when you say it out loud, but laying down a proper justification made the issue a bit complicated.

I’m sorry for the length and the fact that there is no proper “executive summary,” but, frankly, this paper isn’t really for mass consumption. Nevertheless, people who are at that point where they are putting pen to paper to craft the words of their constitutions, statutes, and court rules, will definitely want to read it. There are other discussions, as well, that might help those of you trying to think through the whole charge versus risk question. And, of course, if you’re just really obsessed with bail and no bail – like I am – then you can pour through it and call me with any questions.

I have a hunch about bail reform in America. My hunch is that the first two generations of bail reform didn’t work for three reasons: (1) judges weren’t involved; (2) we worked mostly in the federal system, and didn’t take the time to walk states through the same process; and (3) we never really had all the answers. In this generation, judges are involved, and we are working with the states. And with this paper, I personally believe that we now have some of the final answers to give to states trying to create a more purposeful and possibly moneyless system. 

And you thought all I did was complain about the insurance companies!