Every day, judges across America face defendants who have been arrested and who come before the court for arraignment. After setting a defendant’s court date, which could be months into the future, judges must decide the immediate fate of that defendant. Should that person await trial in jail, or can he or she be safely released? In order to make this decision, judges rely on their own instincts and on the limited information they have on hand. Many use a bail schedule, a chart that designates a specific money bail amount for each criminal charge.
This means that, in many jurisdictions, money becomes a proxy for risk. Those who can afford to make bail buy their way out of jail, while those who can’t remain locked up. We have seen time and again the results of this flawed system. People who pose significant public safety risks are able to post bail and go on to commit other crimes. And low-level, nonviolent, and often minority defendants who are unlikely to commit a new crime are kept behind bars. This benefits no one and doesn’t make us safer. In addition, research shows that even a short stay in jail can have negative consequences for individuals, families, and communities. It can cause a person to lose a job, housing, and even custody of his or her children. Faced with these pressures, pretrial defendants often plead to crimes they may not have committed just so they can get back to work and their families.
Clearly this system is broken. Money bail does not answer what should be the dispositive questions at the time of arraignment: Will the defendant, if released pending trial, show up for court on his or her designated date? And will he or she commit a crime if released during this period?
Our Public Safety Assessment (PSA) is an effort to help protect communities and make the system fairer. It is a research-based, data-driven pretrial risk assessment tool that provides judges with objective information about the likelihood that a defendant will commit a new crime or will fail to return to court. The tool uses nine factors pulled from the administrative record to produce those two risk scores and flag defendants who pose an elevated risk of committing a violent crime. We developed the PSA after conducting extensive research. A team under the direction of two leading researchers in the pretrial field analyzed 750,000 cases from more than 300 jurisdictions to identify the factors that were most predictive of (1) failure to appear, (2) criminal activity, and (3) violence. These factors include a defendant’s age, current charge, and key aspects of a person’s criminal history. The PSA does not take into account race, gender, employment status, level of education, or history of substance use. We have publicly released the complete list of PSA factors and the tool’s algorithm. Anyone is able to see how the risk factors are weighted and how the risk scores are calculated. Judges can consider the PSA report for each defendant when deciding whether a person should be released or detained, but maintain their full judicial discretion in all cases.
Preliminary data indicate that the PSA has the potential to produce a positive impact. For example, in Lucas County, Ohio, pretrial crime is down and significantly more people are returning to court since the county began using the risk tool. More people who belong in jail are behind bars, while more who don't are released on their own recognizance. This means the system is fairer and the community is safer.
Yet despite these positive results, vested special interests are fighting the PSA. They’re trying to defend an unfair system that makes us all less safe and want us to believe that the outcome of certain cases would be different if judges did not use a risk assessment. However, the sad truth is that tragic events will occur regardless of whether judges use a risk-based system such as the PSA or a money bail system. As Judge Glenn Grant, the acting administrative director of the courts in New Jersey, publicly stated, there are “probably 20 cases from 2016 where individuals were released on bail and people were murdered.” The fact is, there is no perfect, foolproof way to know what will happen if a person is released before trial. However, it’s clear that money bail not only fails to minimize the risk that tragedies will occur, it exacts a staggering toll on the communities most deeply affected by the criminal justice system.
The PSA is not a panacea, but it is an important step in the right direction. It is helping to improve our nation’s pretrial process, as rigorous research has suggested that judicial discretion combined with a well-designed, properly implemented risk assessment like the PSA could produce better outcomes. The tool has great promise—and we remain committed to creating a system that promotes safety, equity, and justice.