What Would A World Without Pretrial Assessment and Supervision by the State Look Like? A World With Less Mass-Incarceration.
The answer to this question is simple: it would look the bail system in this country prior to the invention of the first pretrial services program in 1961, which was a world without mass-incarceration.
The fact is: pretrial services, along with probation and parole, have grown and dramatically expanded during a time when generational mass incarceration has occurred since 1970, despite the fact that the purpose of these programs was to reduce incarceration. It didn’t happen, and it made the situation worse.
The Prison Policy Institute suggested that “focusing only on incarceration leads to a distorted view of American punishment.” Instead, we need to focus on the concept of overall correctional control of humans, which includes pretrial services, often a person’s first contact with the dragnet of state supervision. For every person incarcerated there are 2-3 more that are on correctional control in this country, in the so-called prison pipeline.
Pretrial services, like probation and parole, is a trap that sets people up to fail. Most defendants have the benefit of paying for their own supervision. In the pretrial context, defendants are presumed innocent, yet in the name of them avoiding a couple nights in jail we have dramatically expanded the correctional control of the innocent as a “better” alternative.
The Prison Policy Institute explained how these supervision programs set defendants up to fail:
“First, people under community supervision live under intense scrutiny, which often leads to the detection of low-level offending (such as drug use) or technical violations (such as breaking curfew). Normally, incarceration would not be appropriate for such low-level offenses; they would typically be addressed through fines, community service, drug treatment programs, or no criminal justice response at all. However, for people under community supervision, these minor offenses and technical violations can lead to incarceration. This creates a ‘revolving door’ between community supervision and incarceration, which can lead to job loss, housing instability, difficulty caring for children, interruptions in healthcare, and a host of other collateral consequences.”
Over the years, the growth in alternatives to jail programs has simply transferred the burden of the criminal justice system to the state supervision of the accused typically at their own expense. These programs began their dramatic growth in the 1970s, and by 2001 there were 94 federal and over 300 local pretrial services programs.
As the growth in pretrial services continued unabated into 2010, the Third Generation of Bail Reform then created a further generational mass growth in state supervision of the innocent. Such movement attempted to take the Federal Bail Reform Act of 1984 to state and local systems. It has been demonstrated that the Federal Bail Reform Act has more than tripled pretrial detention in the federal system, with a 24% detention rate in 1983 to a 72% detention rate today. This movement was premised on eliminating the right to bail and replacing it with either detention or supervision by the state. This included New Jersey’s reforms of 2017, where now nearly 90% of defendants released are supervised by the state, the rest denied bail and left to sit and rot prior to trial.
The growth in these programs continued unabated through the early 2000s, with the rubric that we were “saving” money because if we didn’t trammel all non-custodial liberties we would be simply forced to re-jail all of these defendants. Of course, mass incarceration and jail growth continued despite all these “savings” from reducing jail populations. But that is a false choice, that you are either supervised by the state or locked up, but a false choice that lead to the growth of such programs.
The right to bail, regardless of whether you support the bail bond system or not, challenges not just state custody of a presumed innocent defendant but all other liberty-trammeling measures.
Today, the central purpose of pretrial services has been debunked. The central component of the need for pretrial services is three-fold—using a pretrial risk assessment to assess risk and then to recommend to judges a varying dragnet of state supervision that pretrial services then provides to “protect public safety,” which will then reduce local jail populations as well.
First, the “science” of pretrial risk assessment has been fully debunked, with many academics and others suggesting the assessments permanently baked-in racial and other protected-class bias.
RELATED: PRETRIALRISK.COM
Second, the trammeling other liberties, in a move one commentator called e-carceration (electronic incarceration), is now seen as sometimes more nefarious than pretrial custody because it can cause far more serious results than custody, such as being charged with a new crime that would not be a crime but for the lodging of a charge by a prosecutor.
Third, there is absolutely no evidence that the pretrial supervision of defendants presumed innocent has had any “public safety” benefits, and there instead is strong evidence to believe that over-supervision of low-level defendants in fact creates a pipeline to jail and then prison.
Rather than forcing key choices between custody and liberty, erring most often on the side of pretrial liberty, systems now grant liberty but then trammels other constitutional rights as a trade-off creating an alternate pipeline for persons to fail.
Instead, judges should return back to what they did before—set reasonable bail, including releasing as many defendants that, in the opinion of judges, will return to court and abide by the conditions of release. As the Supreme Court said prior to this era of mass incarceration and state supervision: “Liberty is the norm in this Country.” Getting rid of liberty-trammeling pretrial state supervision of the innocent will return liberty to the norm.