Tools for Safe and Smart Bail System Changes: Pretrial Support

This is part of the Tools for Safe and Smart Bail System Changes blog post series. You can read the introduction and find other posts in the series here.

What is it?

Pretrial support is a range of tools and measures designed to minimize the risk of defendants failing to appear in court or being rearrested. Traditionally, judges have used bail conditions of release to encourage pretrial success. Recently, experts have recognized the importance of shifting practices toward identifying and addressing pretrial needs to support successful outcomes. While bail conditions were mandatory to follow, pretrial support can be voluntary. The ultimate objective is to increase defendants’ presence at scheduled court hearings while addressing any potential risks they may pose to the community.

One significant aspect of pretrial support is its ability to address underlying issues that may contribute to a defendant’s involvement in the criminal justice system. A needs assessment is a tool used to identify these pretrial needs. The assessments are generally short, available to the public for free and can be administered by non-clinical staff. It’s important to distinguish needs assessments from risk assessments; while risk assessments focus on identifying individuals with a higher likelihood for flight or safety risk, needs assessments aim to identify individuals’ resource or treatment needs to reduce the probability of pretrial failure.

Pretrial support tools can take various forms and may encompass different practices. Providing access to support helps defendants improve their lives and more reliably show up for court while decreasing the likelihood of continued criminal behavior. Popular types of pretrial support include (Download the table):

What concerns does it address?

Focused on court nonappearance and public safety concerns, the bail system often overlooks underlying issues that may contribute to flight or safety risk. This approach can result in detaining individuals without addressing their essential needs, exacerbating existing behavioral and economic challenges that perpetuate the cycle of crime. Pretrial needs assessments can identify characteristics associated with a defendant’s potential for pretrial failure, while support tools can address these issues and provide better outcomes.

Pretrial detention can have far-reaching consequences on a person’s life, even before their guilt or innocence is determined. To mitigate unnecessary detention—and the collateral consequences that come from it—pretrial support offers viable alternatives to incarceration while addressing issues that may lead to flight or safety risk. Research shows that low-level defendants are most susceptible to incarceration leading to reoffending.

Although court nonappearance is typically sanctioned uniformly, some experts have highlighted that many defendants miss court for reasons like forgetfulness, lack of support (e.g., child care, transportation) or severe behavioral health issues rather than trying to avoid accountability. In fact, behavioral health and economic challenges are prevalent in detainees. Approximately 44 percent of jail populations have mental illness, and 63 percent have substance use disorder. Those incarcerated are also between 7.5 to 11 times more likely to be homeless. These issues can interfere with an individual’s ability to make court appearances and stay arrest-free before trial.

Pretrial support may also help with public safety. Research shows housing instability and untreated mental health and substance use issues may be root causes for criminality. Initiatives that connect individuals to appropriate services can effectively reduce their chances of reoffending.

Additionally, pretrial support can be more cost-effective for the criminal justice system. By reducing failures to appear and reoffending, communities can save money on administrative costs associated with additional court dates, arrests and court congestion. And by responsibly reducing jail populations, jurisdictions can reallocate resources to other critical public safety areas.

Is it effective?

Needs assessments can be effective when used pretrial. This tool serves to better understand the unique requirements, circumstances and potential challenges of individuals awaiting trial. However, their efficacy in pretrial contexts is contingent upon appropriate and thoughtful implementation. Further, research shows that needs assessments may prove more effective when used alongside risk assessments.

Studies on the effectiveness of different support tools are somewhat hit or miss. While there are ample studies on tools such as court reminders and pretrial services, research on the efficacy of social needs support or mental health treatment is rare. Findings from several studies are listed below (Download the table):

What challenges or concerns does it present?

The genesis of needs assessments and support tools took place in the context of post-conviction use. Consequently, there are concerns regarding their use in the pretrial phase. Pretrial defendants may have a full range of needs pertinent to flight or safety risk that are not associated with their current criminal conduct. A central part of this concern involves reservations surrounding obligatory measures such as pretrial supervision check-ins, drug testing or compulsory counseling. Critics worry that these mandates are coercive and could potentially infringe on individuals’ rights, especially if the conditions are not individualized to the defendant’s case. This aspect is particularly problematic when coupled with enforcement mechanisms, making technical violations potential grounds for arrest warrants.

Certain types of pretrial support may be inaccessible to low-income defendants. For example, court reminders are typically delivered through electronic means, but not all defendants have access to technology. Similarly, electronic monitoring, pretrial services or drug testing may have an associated fee that some defendants are incapable of paying. Thus, some tools might disproportionately benefit certain demographics over others. Even if a defendant is able to pay a fee, the financial obligation could potentially impose a burden, destabilizing their capacity to provide for themselves or their family. If support is unevenly distributed, it could inadvertently exacerbate existing inequalities within the justice system. Implementing and managing pretrial support programs can also prove costly and resource-intensive. The concern is that some programs may divert resources from other critical areas of the justice system, potentially compromising the overall efficiency and fairness of the process.

Conclusion

The identification of pretrial support needs should never eclipse the presumption of innocence. Mandatory application of support tools, such as treatment or basic needs support, should be avoided. Punitive measures should only address court nonappearance and new criminal activity, not a defendant’s decision to use an offered support tool. Equally, inherently obligatory pretrial support like pretrial supervision or electronic monitoring must be reserved for instances where a defendant’s flight or safety risk necessitates it, and technical violations should be minimized.

Further, pretrial support strategies require maximum efficacy. Needs assessments should be used in conjunction with risk assessments. Court reminders should prioritize personalized human interaction over automation and provide guidance on preparation for court dates as well as the consequences of missing them. Mandatory drug testing must coincide with access to drug treatment services.

Courts and prosecutors bear the responsibility to safeguard the integrity of the criminal justice process. As knowledge advances, their practices must evolve. The potential ability of pretrial support to identify and address defendant challenges leading to increased court appearance rates and abated persistent public safety concerns is substantial. Shifting the bail system’s focus toward pretrial support can promote fairness, efficiency and improved outcomes within the criminal justice system.