Tools for Safe and Smart Bail System Changes: Bail Determinants
This is part of the “Tools for Safe and Smart Bail System Changes” series. Read the introduction and view other posts here.
What are they?
Bail determinants are considerations a judge or delegated release authority must make to set bail and conditions for pretrial release. Prior to the 1960s, an individual’s bail was largely determined by the charges they faced. The idea was that the more serious the offense, the greater the defendant’s reluctance to appear in court to face the consequences—and the higher the financial disincentive for nonappearance.
At the time, courts rarely released anyone without a monetary bond. This created a two-class bail system—based largely on an individual’s ability to pay—and resulted in jail resources being wasted on a large number of low-income, low-risk defendants. Since then, experts have promoted the use of risk factors beyond the crime charged, least-restrictive means and presumption of release laws to benefit defendants who pose little to no flight or public safety risk.
The use of bail involves calculating the probability that a defendant will remain law-abiding and appear in court. Several states have enumerated lists of risk factors to assist courts in this prediction.
Typical factors include:
Judges have discretion in weighing and considering factors based on the specific circumstances of each case. Jurisdictions may use different tools—such as a bail schedule, which generally only considers the level of the offense charged; pretrial risk assessment or a bail matrix—to help determine release. (Download the table.)
Least-restrictive means and presumption of release laws also affect bail determinations. The former requires courts to use the least limiting or oppressive bail conditions to ensure court appearance and public safety. This generally means allowing an individual to remain in the community with minimal supervision or conditions. The latter requires the court to release the defendant on their own recognizance or an unsecured bond unless flight or public safety considerations require stricter conditions. Some states are aiming to move low-level offenses from presumption of release to mandatory release.
What concerns do they address?
Due to constitutional protections, pretrial incarceration can be used only for limited reasons, such as ensuring individuals show up for court and protecting the public. While every state considers court appearance in setting bail, some states—such as New York—do not consider public safety risk. Bail determinants put systems in place to improve pretrial decisions, helping to avoid excessive bail or the inadvertent use of pretrial detention as punishment.
Balancing allowable reasons for detention with the need to protect civil liberties avoids government overreach and mitigates the detrimental impacts of incarceration. The bail system plays a crucial role in maintaining this balance. Predicting risk as accurately as possible results in consistent and fair bail decisions that foster public trust and confidence in the justice system. More individualized bail considerations can help prevent individuals with significant financial means from exploiting their wealth to evade accountability or cause further harm to others. Thus, careful risk assessment ensures low-risk defendants are not unnecessarily incarcerated—costing taxpayers money—and that high-risk defendants are detained to protect public safety.
Evaluating an individual’s ability to pay is also essential to dismantling a wealth-based bail system. In states like California, a court cannot detain a person based solely on their inability to pay a monetary bond. Other jurisdictions require a defendant’s ability to pay to at least be considered. Regardless, 60 percent of pretrial detainees are behind bars just because they cannot afford bail.
Presumption of release and least-restrictive laws embody the right to no excessive bail and can help create a more consistent system that better prioritizes jail resources for high-risk individuals. By expediting the release of low-risk offenders, these laws also minimize the collateral consequences of pretrial detention that can cause individuals to lose their jobs, their homes or even their children. Research shows that even one day in jail can increase the chance of recidivism—often due to these outcomes.
Are they effective?
Several studies have been conducted on the effectiveness of different factors used to predict flight or safety risk. Initial research and validation studies of pretrial risk assessments provide further insight as to their accuracy in determining pretrial outcomes.
Here are just a few of these studies, along with the risk factors they found most effective:
Interestingly, criminal history seems to be the only common factor. Even among the most common pretrial risk assessments, only criminal history and prior failures to appear are used across the board—although several also use age, employment and current supervision. None of these studies found other perceived risk factors, such as injury to a victim or use of a weapon, to be good indicators of risk. In fact, the 2011 study found that these factors actually increased pretrial success. (Download the table.)
Presumptive release and least-restrictive laws demonstrate positive results. Research shows that releasing defendants with low-level charges does not compromise—and can actually increase—public safety. These laws better support individuals’ presumption of innocence and avoid excessive bail. The majority of states have incorporated the essence of these laws in their statutes.
What challenges or concerns do they present?
The consideration of bail risk factors has done little to curb the growing jail population. This could mean that the use of preventative detention for high-risk individuals has outpaced the release of defendants who lack risk factors. Consequently, over the last four decades, the pretrial detention population has grown approximately 433 percent.
Conversely, critics blame bail reform for rising crime. While research shows generally low rearrest rates among pretrial populations, states that do not consider a defendant’s dangerousness when setting bail could be most susceptible to public safety risk.
Bail schedules save time and resources, but they eliminate research-backed bail determinants. The predictive accuracy of bail risk factors is also questionable due to inconsistent research findings and few studies on the cause of these variable results. Some communities have chosen to use a bail matrix that relies on pretrial risk assessments or to implement presumption of release laws.
Additionally, some experts have fairness and equity concerns. While bail risk factors tend to focus on objective elements like criminal history and community ties, they often fail to adequately consider unique circumstances. Factors like mental health issues or trauma history—which may impact an individual’s ability to attend court or comply with conditions—are sometimes overlooked or even penalized. Further, historical injustices may unfairly weight some objective factors, as traditionally marginalized communities have disproportionately faced more arrests, higher charges and longer jail time.
Conclusion
Addressing flight and public safety risk with bail is crucial to maintaining the integrity of the legal system, protecting communities, upholding public trust and ensuring fairness and equality for all individuals involved. It is concerning that some states do not consider the dangerousness of a defendant in their bail considerations. Many defendants do not pose a flight or safety risk and should be permitted to remain in their community pending trial. Releasing these low-risk individuals protects our constitutional rights and mitigates unnecessary restrictions on individual liberties, and it can also increase public safety. While bail risk factors have proven somewhat inconsistent in determining pretrial success, using them in conjunction with presumption of release and least-restrictive laws limits detention to high-risk defendants and helps communities save money and prioritize resources.
