Resetting the Default: Detention Should be Hard to Get

By Wendy Shang posted 08-08-2018 16:10


Today, the system’s ability to invoke unnecessary pretrial detention is akin to the easy, quick - often mindless - process of ordering a pizza for delivery online. Eventually, it becomes part of the regular routine, and it’s not a healthy habit at all. The process of detaining someone before trial should be more like a hospital admission. In order to admit someone, the doctor must show that there is a medical necessity, meaning that the illness must be severe enough, and the required services intense enough, that care can be given safely and effectively only in the hospital. Admission must be documented with evidence of this need.

What we’ve learned from experience is that when jurisdictions first tackle moving away from secured money bond, without raising the bar on who may be detained and how, the system continues to cause unnecessary detentions. To make detention the exception rather than the rule, it needs to be more like hospital admissions and less like ordering from Domino’s.

In Maryland, for example, a new court rule went into effect that prioritized release on recognizance and unsecured money bond over secured money bond,. It also forbade the setting of money bail that results in detention solely because of inability to pay. This resulted in an increase in people released on their own recognizance and unsecured bail. However, without a preventive detention protocol to accompany these changes, judges are ordering more people detained without bond, increasing that category over 10 percent.

Kentucky, one of a half-dozen states that do not have commercial bail bonding, has been using pretrial assessments for decades. Kentucky also has a statewide pretrial services office, and its public defender wrote the first defender handbook on bail. But money bonds persist in Kentucky and there is no preventive detention statute—which results in detention being as easy to get as ordering a pizza. While 90 percent of people arrested in Kentucky are charged with violations, misdemeanors, and Class D felonies, 37 percent of people arrested are held in custody until their court dates.

Our look at federal courts showed that the institution of the federal pretrial assessment (PTRA) did not result in significant changes to detention rates. The “reverse presumption” of release in the federal system for some cases, and a failure to require judges to consider pretrial assessment results, have made it difficult to realize the clear intent of maximizing release.

New Jersey’s pretrial reform efforts focused on resetting the default to release. First, the new law removed an entire class of people from being considered for detention through the use of complaint-summons to bring people to court at a later date, rather than using arrest. Next, complaint-warrants are issued by judicial officers for more serious charges. If the prosecutor believes that detention is warranted in those cases, the prosecutor must make a motion for detention, and the judge will hold a pretrial detention hearing within three to five business days. The prosecutor must demonstrate that no condition can reasonably assure public safety or court appearance; at the same hearing, defendants are represented by counsel and may present evidence in opposition to detention.

In the first year of the new law, New Jersey produced impressive results. Out of 44,319 people who were issued complaint-warrants, prosecutors filed 19,366 motions for pretrial detention. Of those, the court ordered 8,043 defendants detained. The rate of pretrial release was 81.3 percent for those issued complaint-warrants and the rate of pretrial detention was 18.1 percent; if you include people issued complaint-summons, who would have been considered for detention under the previous law, the overall detention rate is 5.6 percent. Release has clearly become the default.

Voters are telling us that they are ready for courts to make pretrial release the default response of the system. More than three-quarters (76%) of registered voters support using citations instead of arrest as a response for nonviolent offenses; 52 percent believe prosecutors should have to make the case for detention, rather than people making the case for their own pretrial liberty.

Our health-care system has a preference for outpatient care; getting admitted to a hospital is a sign that the person needs significant, involved treatment. Hospitals have procedures for documenting and reviewing the need for this care. Likewise, our systems need to reset their defaults away from money-based detention to pretrial liberty as the norm and detention the carefully guarded exception.