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!
