Advancing Smart Pretrial: My Remarks from the Smart Suite Summit

By Cherise Fanno Burdeen posted 09-08-2016 23:26


One of the most conservative voices on the United States Supreme Court has affirmed that “in our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Yet millions of people each year are being detained pretrial, most for low-level, nonviolent offenses.

The US sees nearly 12 million jail admissions annually and nearly half a million unconvicted individuals behind bars on any given day—most for the simple reason that they are too poor to afford bail. Taxpayers spend nearly $14 billion every year for this “service”, which buys lost jobs and housing, interrupted education and health care, and even lost custody of children for those who have been arrested. It also leaves the rest of us less safe, because research shows even  three days of unnecessary pretrial detention can make low-risk people more likely to be arrested in the pretrial period and beyond.    

No one here will be surprised to learn that the burden of pretrial injustice is felt most acutely by people of color.  The money bonds people of color are required to pay are higher than those required of similarly situated white defendants. Among African American men, money bond amounts are, on average, 35 percent more; Latino men pay a 19 percent premium.

Pretrial injustice is also THE gateway to mass incarceration. Compared to similarly situated people who go home before trial, those who spend the full pretrial period in jail are more likely to be sentenced to jail or prison, and for longer times—their jail sentences are three times as long; their prison sentences twice as long.  Recently, University of Pennsylvania researchers who found similar results calculated that had Harris County, Texas released on recognizance all misdemeanor defendants who had been assigned the minimum bail of $500, from 2008 to 2013 it would have released 40,000 more defendants pretrial; avoided 5,900 criminal convictions (mainly from wrongful guilty pleas); filled 400,000 fewer jail beds; and saved $20 million in supervision costs.

And because fairness—what researchers call “procedural justice”— is a crime prevention technique, we ought be more thoughtful about the message we send when we detain people simply due to inability to pay. Out of concern for police officers on the front lines, at the very least, we should be doing all we can to address the sense money bail sends, which is that the system is rigged.  

The Pretrial Justice Institute is the proud partner on the Smart Pretrial Demonstration Initiative. Launched in 2014 in three competitively selected sites—City and County of Denver, Colorado; Yakima County, Washington; and the State of Delaware, Smart Pretrial is a practical test of the cost savings and public safety enhancements that can be achieved by moving from a pretrial system based on money and money bail, to one that relies on risk assessment to inform pretrial release decision-making. Put another way, it’s the formal name of a change process that is as much about adaptive change as it is technical change: We are in the business of helping people think differently, so they see solutions where they now only see (or can’t see) problems.

How do we undertake adaptive change?  We use research, data, and innovation.

Our experience, before Smart Pretrial and now,  is that data and research are both vital and irrelevant. Whatever could I mean? We need data about how the system is functioning, like how many defendants are being processed certain ways and what their outcomes are. We need to know what to count, how to count it, and what sense to make of it.  For that, we need research partnerships at the local and state levels, so that there is an independent voice trusted to be impartial and just tell it to us straight. And we need before and after measurements so we know if we’re making progress on our goals.

But for us in Smart Pretrial, we also realized that data is totally irrelevant in a space where people are not ready to hear it, understand it, or take actions from it.  So we brought in other research and data—on behavior change (system actors, not defendants), adult learning principles, implementation science, and frankly, on innovation and transformation—so we could create the environment for adaptive change.  Once we are able to engage someone and empower people to see things differently, the technical change of using risk assessment is easy. They come up with ways to get it, implement it, use it, and make things happen.  

Each of the three Smart Pretrial sites have begun to make important progress but I am going to focus today on just one of the three (you can see lots of things about all three on our website):

City and County of Denver, Colorado:

  • Did the first-ever pretrial  cost-benefit analysis for which policy-makers were able to model the monetary effects of certain scenarios, such as if more low risk defendants were released and more high risk defendants were detained, and if fewer defendants were supervised.
  • Developed for the first time ever an accurate data dashboard for pretrial inmates in the jail, including by pretrial risk level
  • Eliminated its money bond schedule for felony defendants and now assesses 100% of them prior to release. Misdemeanor defendants are next
  • Is scaling back supervision, because it was way over-supervising low risk defendants

Yakima County, Washington:

  • Please check out the Smart Pretrial workshop this morning where you get to assess your own jurisdiction and learn about Yakima County’s early outcomes from the presiding judge himself.

For 40 years, PJI has been drawing attention to the unsafe, unfair and ineffective state of pretrial justice in America and, just as importantly, leaving people feeling that anything is possible when we work in authentic partnership. You can help keep this steady drumbeat from falling silent by becoming a member of the University of Pretrial community, and by using the powerful mediums of Facebook and Twitter you can help us demonstrate just how ending cash bail and reducing pretrial detention can be done—through initiatives like Smart Pretrial.

Candidly, this field is proliferating as never before: Where there once was the Public Welfare Foundation and BJA, there now are so many more players—the Arnold Foundation, the MacArthur Foundation, Koch Industries, and so much going on—as evidenced by new research, class action lawsuits, and the awesome leadership of the current administration..

My challenge to all of you is that you recognize that pretrial justice is not a separate program, project or initiative within your systems—it should be part of your overall work to improve the lives of people in your communities, to reduce our reliance on incarceration, and to be fiscally responsible.

Finally, I want to say something about the importance of community-system partnerships and preview for you what we will be experimenting with in the next iteration of our site work at PJI.

There is a lot of lip service given to community engagement in criminal justice reform.  Nowhere have we left the community out more than the world of pretrial risk assessment. In fact, one could argue that the move from money bond (easily understood, even if horrible) to actuarial science, logistic regression, and fears of machine learning is a move that serves to further erode public trust in our systems.  

We have begun to frame out something we are calling “Participatory Pretrial”, modeled after our friends at Silicon Valley DeBug’s “Participatory Defense”, whereby we will be developing a curriculum and delivery system to teach communities—every day people—what risk assessment is, how it works, why what you do matters (since your future behavior will be predicted based on your past), and how to effectively work with local system stakeholders to demand Smart Pretrial in your county or state. We talk about it like educating people about credit scores—to demystify the scoring system, help you understand how modifications to your behavior will affect your score, but also why this system will be more fair IF the community acts like the Consumer Financial Protection Bureau and demands it’s appropriate use.  

So, join UP, follow us on social media, and watch for the opening for registration to our first-ever pretrial innovation convention being held here in DC in March.  We are making pretrial great again and we want you along for the ride.