The American Bar Association Criminal Justice Section has commenced the Restoring the Presumption of Innocence Project (RPI). A project with a primary goal of securing the legitimacy of the pretrial detention system. The project aims, through education and technical assistance, to provide a more consistent and fair approach to pretrial decisions in jurisdictions across the country. The Project recently collaborated with the ABA Racial Justice Improvement Project, and is currently supplementing funding to the pretrial reform efforts in New Orleans, New York, and Pennsylvania. RPI will also focus on creating a tool kit and implementing training specific to pretrial reform in Utah. |
Numerous RJIP Task forces are focusing on issues in pretrial considerations. Recently, members of the Pennsylvania Task Force, joined by the North Carolina Task Force, traveled to New York City to meet with representatives from the Center for Court Innovation and the Criminal Justice Agency for a Technical Assistance and Peer-to-Peer site visit in Pretrial Reform and Juvenile Justice.
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Problems*:
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Possible Solutions*:
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*Data and research gathered from Pretrial Justice Institute’s Implementing the
Recommendations of the National Symposium on Pretrial Justice: The 2013 Progress Report
Pretrial Release and Risk Assessment
50 years of research has consistently shown that pretrial detention increases post conviction incarceration, because defendants who are detained in jail while awaiting trial are more likely to plead guilty, to be convicted, to be sentenced to prison, and to receive harsher sentences than those who are released before trial. A pretrial risk assessment is a tool that calculates a risk level for a defendant. The risk level corresponds to the defendant’s likelihood to fail to appear or of new criminal activity. The lower the risk level assessed, the lower the likelihood of failure to appear or new criminal activity. A risk assessment provides classifications for defendants that can be used when determining their pretrial release. It provides a calculated analysis of the risk the defendant poses, rather than just determining risk based on gut instinct or the limited facts provided to a judge. It also helps eliminate any personal biases against defendants for their race, age, gender, or socio-economic class. Click here for more info on how pretrial tools and instruments work and their benefits.
There are several different types of pretrial assessments used across the country. Although each is slightly different, many of the factors used to calculate risk are the same between assessments. To be most effective, an assessment should be recalibrated to the jurisdiction it is used in. Check out some prominent examples of pretrial instruments used across the nation:
- The VPRAI calculates risk level based on nine factors: charge type, pending charges, outstanding warrant, criminal history, previous failures to appear convictions, previous violent convictions, length at current residence, length of employment, and history of drug abuse. The VPRAI is most likely to be used by a jurisdiction looking to create their own risk assessment for a tailored, state-wide jurisdiction. The VPRAI is also likely to be used as a model for validating and recalibrating a risk assessment after it has been created. Click here for more info.
2. Ohio Risk Assessment System: Pretrial Assessment Tool (ORAS-PAT)
-The ORAS-PAT calculates risk level based on seven factors: age of first arrest, previous failures to appear, prior jail incarcerations, employment at time of arrest, length at current residence, recent illegal drug use, and history of drug abuse. The ORAS-PAT is most likely to be used by a jurisdiction that wants to create a larger risk assessment to be used at every stage in the criminal justice system, not just a pretrial assessment.
3. Federal Pretrial Risk Assessment Instrument (PTRA)
-The PTRA calculates risk level based on the following factors: number of felony convictions, prior failures to appear, pending charges, current offense type, offense class, age at interview, education level, employment status, residential ownership, current drug problems, current alcohol problems, citizenship status, foreign ties, valid passport, financial interest outside US, and recent travel outside of US. The PTRA has been re-validated, showing that it is an accurate predictor of a defendant’s risk level. The PTRA is most likely to be used by a jurisdiction that has many different populations of defendants, because this is reflective of the diversity in defendants across the federal districts.
There are several different types of pretrial assessments used across the country. Although each is slightly different, many of the factors used to calculate risk are the same between assessments. To be most effective, an assessment should be recalibrated to the jurisdiction it is used in. Check out some prominent examples of pretrial instruments used across the nation:
- The VPRAI calculates risk level based on nine factors: charge type, pending charges, outstanding warrant, criminal history, previous failures to appear convictions, previous violent convictions, length at current residence, length of employment, and history of drug abuse. The VPRAI is most likely to be used by a jurisdiction looking to create their own risk assessment for a tailored, state-wide jurisdiction. The VPRAI is also likely to be used as a model for validating and recalibrating a risk assessment after it has been created. Click here for more info.
2. Ohio Risk Assessment System: Pretrial Assessment Tool (ORAS-PAT)
-The ORAS-PAT calculates risk level based on seven factors: age of first arrest, previous failures to appear, prior jail incarcerations, employment at time of arrest, length at current residence, recent illegal drug use, and history of drug abuse. The ORAS-PAT is most likely to be used by a jurisdiction that wants to create a larger risk assessment to be used at every stage in the criminal justice system, not just a pretrial assessment.
3. Federal Pretrial Risk Assessment Instrument (PTRA)
-The PTRA calculates risk level based on the following factors: number of felony convictions, prior failures to appear, pending charges, current offense type, offense class, age at interview, education level, employment status, residential ownership, current drug problems, current alcohol problems, citizenship status, foreign ties, valid passport, financial interest outside US, and recent travel outside of US. The PTRA has been re-validated, showing that it is an accurate predictor of a defendant’s risk level. The PTRA is most likely to be used by a jurisdiction that has many different populations of defendants, because this is reflective of the diversity in defendants across the federal districts.
There are different types of pretrial reforms that are happening across the nation. Some states are implementing state-wide evidence-based decision making systems, while others implement at county-levels. The use of evidence-based decision making systems has also lead to reform in bail structures and release requirements. Other states are focusing on creating diversion programs for low risk offenders or guaranteeing the right to counsel at initial bail conferences. Additionally, the reform is happening at a variety of levels. Many states and localities are passing legislation to help reform pretrial detention and their penal codes. Additionally, some states are seeing the defeat of legislation that would harm pretrial release. While other states are experiencing reform being promoted from within the judiciary. Check out some 2015 updates from jurisdictions seeing great success. |
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Relevant Resources
ABA Criminal Justice Standards on Pretrial Release
"Every jurisdiction should establish a pretrial services agency or program to collect and present the necessary information, present risk assessments, and, consistent with court policy, make release recommendations required by the judicial officer in making release decisions, including the defendant’s eligibility for diversion, treatment or other alternative adjudication programs, such as drug or other treatment courts."
Tips for Defense Counsel to Improve Pretrial Release
A great resource to ensure public defenders and other defense counsel have an active role in establishing a more racially-equitable criminal justice system.
National Legal Aid & Defender Association
"Objective research-based tools have been and continue to be developed that impartially assess a person's likelihood to flee or pose a threat to the community and provide this information to judges, prosecutors, and defenders. With the availability of such tools, defenders are better able to advocate for release according to evidence-based risk assessments, prosecutors are able to identify discrete risks actually posed by individuals and request release conditions tailored to address those risks, and judges are better equipped to assign more rational conditions of release or detention."
Conference of State Court Administrators
"The Conference of State Court Administrators advocates that court leaders promote,collaborate toward, and accomplish the adoption of evidence-based assessment of risk in setting pretrial release conditions."
National District Attorneys Association
"A prosecutor should take steps to gather adequate information about the defendant’s circumstances and history to request an appropriate bail amount."
"Every jurisdiction should establish a pretrial services agency or program to collect and present the necessary information, present risk assessments, and, consistent with court policy, make release recommendations required by the judicial officer in making release decisions, including the defendant’s eligibility for diversion, treatment or other alternative adjudication programs, such as drug or other treatment courts."
Tips for Defense Counsel to Improve Pretrial Release
A great resource to ensure public defenders and other defense counsel have an active role in establishing a more racially-equitable criminal justice system.
National Legal Aid & Defender Association
"Objective research-based tools have been and continue to be developed that impartially assess a person's likelihood to flee or pose a threat to the community and provide this information to judges, prosecutors, and defenders. With the availability of such tools, defenders are better able to advocate for release according to evidence-based risk assessments, prosecutors are able to identify discrete risks actually posed by individuals and request release conditions tailored to address those risks, and judges are better equipped to assign more rational conditions of release or detention."
Conference of State Court Administrators
"The Conference of State Court Administrators advocates that court leaders promote,collaborate toward, and accomplish the adoption of evidence-based assessment of risk in setting pretrial release conditions."
National District Attorneys Association
"A prosecutor should take steps to gather adequate information about the defendant’s circumstances and history to request an appropriate bail amount."