Bail Reform: New Directions for Pretrial Detention and Release

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates. Practical and low-cost interventions, such as court reminder systems, are underutilized. To promote lasting reform, this chapter identifies pretrial strategies that are both within the state’s authority and supported by empirical research. These interventions should be designed with input from stakeholders, and carefully evaluated to ensure that the desired improvements are achieved

Algorithmic Risk Assessments and the Double-Edged Sword of Youth

Risk assessment algorithms—statistical formulas that predict the likelihood a person will commit crime in the future—are used across the country to help make life-altering decisions in the criminal process, including setting bail, determining sentences, selecting probation conditions, and deciding parole. Yet many of these instruments are “black-box” tools. The algorithms they use are secret, both to the sentencing authorities who rely on them and to the offender whose life is affected. The opaque nature of these tools raises numerous legal and ethical concerns. In this paper we argue that risk assessment algorithms obfuscate how certain factors, usually considered mitigating by sentencing authorities, can lead to higher risk scores and thus inappropriately inflate sentences. We illustrate this phenomenon through one of its most dramatic manifestations: The role of age in risk assessment algorithms. When considered as a factor at sentencing, youthfulness can be a double-edged sword—it can both enhance risk and diminish blameworthiness. If either risk or culpability is the sole issue at sentencing, this potential conflict is avoided. But when, as is often the case, both risk and culpability are considered relevant to the sentence, the aggravating effect of youth should presumably be offset or perhaps eliminated entirely by its mitigating impact. If judges and parole authorities are fully informed of the conflicting roles youth plays in a particular case, they can engage in this balancing act as appropriate. However, when information about risk comes from a black-box algorithm, they are unlikely to know the extent to which the risk evaluation is influenced by the defendant’s youthfulness. In such cases, their decisions about pretrial detention, sentence, or release may unknowingly give youth too much weight as an aggravator. Further, even if the black box is opened and the risk assessment algorithm is made publicly available, the risk score may not be conveyed in a fully transparent manner. For instance, while judges may be told that an offender’s youth is a risk factor, the relative weight of age in the overall score may not be fully explained or understood at the time of decision-making. Unless the judge makes specific inquiries, she will not be informed of the variables that contributed most heavily to a particular defendant’s risk score. This decisional blindness is especially pernicious in light of the impression created by the labels associated with these instruments—“high risk” or “high risk of violence.” Such labels not only convey information about the potential for recidivism. They are also suggestive of bad character, or at least a history of bad decision-making. In other words, these labels convey condemnation. Such condemnation might be appropriate for an individual who has earned the “high-risk” classification by committing multiple violent or ruthless acts. But it is not warranted for an individual who has earned that label largely because of his or her youth. To ensure sentencers take this double-edged sword problem into account, risk assessment algorithms should be transparent about the factors that most heavily influence the score. Only in that way can courts and legislators engage in an explicit discussion about whether, and to what extent, young age should be considered a mitigator or an aggravator in fashioning criminal punishment. In Part I, we discuss the tensions youthfulness generates in the post-conviction setting by introducing the double-edge sword phenomenon and the jurisprudence that has developed around it. In Part II, we present empirical evidence that shows how influential age is in the widely-used COMPAS Violent Recidivism Risk Score (VRRS) and in other common risk assessment tools. Specifically, we conduct a partial decomposition of the VRRS to show that age alone can explain almost 60% of its variation, substantially more than the contributions of criminal history, gender or race. Similar patterns are documented in other common risk scores. In Part III, we discuss how obfuscation of age’s impact on the risk score improperly undermines consideration of youthfulness as a mitigating factor. We also discuss how the points we make about the role of youth might apply to a number of other factors that are often used in structured risk assessments, including mental illness, substance abuse, and socio-economic factors. While our discussion centers on sentencing, the main argument is generally relevant to a broad range of settings in which risk assessments influence criminal justice outcomes

Pretrial Detention and the Value of Liberty

How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify danger—has brought this question to the fore. Constitutional doctrine authorizes pretrial detention when the government’s interest in safety “outweighs” an individual’s interest in liberty, but it does not specify how to balance these goods. If detaining ten presumptively innocent people for three months is projected to prevent one robbery, is it worth it? This Article confronts the question of what degree of risk justifies pretrial preventive detention if one takes the consequentialist approach of current law seriously. Surveying the law, we derive two principles: 1) detention must avert greater harm (by preventing crime) than it inflicts (by depriving a person of liberty) and 2) prohibitions against pretrial punishment mean that the harm experienced by the detainee cannot be discounted in the cost-benefit calculus. With this conceptual framework in place, we develop a novel empirical method for estimating the relative harms of incarceration and crime victimization that we call “Rawlsian cost-benefit analysis”: a survey method that asks respondents to choose between being the victim of certain crimes or being jailed for varying time periods. The results suggest that even short periods of incarceration impose grave harms, such that a person must pose an extremely high risk of serious crime in order for detention to be justified. No existing risk assessment tool is sufficient to identify individuals who warrant detention. The empirical results demonstrate that the stated consequentialist rationale for pretrial detention cannot begin to justify our current detention rates, and suggest that the existing system veers uncomfortably close to pretrial punishment. The degree of discord between theory and practice demands a rethinking of pretrial law and policy

Bail Reform: New Directions for Pretrial Detention and Release

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates. Practical and low-cost interventions, such as court reminder systems, are underutilized. To promote lasting reform, this chapter identifies pretrial strategies that are both within the state’s authority and supported by empirical research. These interventions should be designed with input from stakeholders, and carefully evaluated to ensure that the desired improvements are achieved

Misdemeanors by the Numbers

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. Despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, however, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing. The resulting portrait reveals a system that disproportionately impacts poor people and people of color. Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention, even at relatively low amounts, and imposed court costs upon conviction. There were substantial racial disparities in case-filing rates across locales and offense categories. The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted. The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and may serve different functions, from place to place. It thus presents a major challenge to describe and theorize the contemporary landscape of misdemeanor justice. At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor and its role in the criminal justice system. As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world

The Scale of Misdemeanor Justice

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than in 1995 in almost every state for which data is available. Third, there is profound racial disparity in the misdemeanor arrest rate for most—but not all—offense types. This is sobering if not surprising. More unexpectedly, perhaps, the variation in racial disparity across offense types has remained remarkably constant over the past thirty-seven years; the offenses marked by the greatest racial disparity in arrest rates in 1980 are more or less the same as those marked by greatest racial disparity today. Our findings confirm that the scale of misdemeanor justice is vast, but contradict the notion that it is expanding. In addition, we document a surprising degree of uniformity in misdemeanor trends. Such consistency suggests that the misdemeanor system may have a deeper and more uniform structure than we anticipated

The Downstream Consequences of Misdemeanor Pretrial Detention

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releasees to plead guilty, are 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crimes, which suggests that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount, offense, demographic information, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based on case timing confirms that these differences likely reflect the causal effect of detention. These results raise important constitutional questions and suggest that Harris County could save millions of dollars per year, increase public safety, and reduce wrongful convictions with better pretrial release polic

Dredged Sediments Contain Potentially Beneficial Microorganisms for Agriculture and Little Harmful Cyanobacteria

Abstract Introduction Soils worldwide are degrading, raising concerns about our ability to feed the growing global population. Soil amendments that can alleviate degradation are gaining attention. The application of sediments dredged from waterways to agricultural fields has increasing promise as a means for improving degraded soils. However, herbaceous plant species may have difficulty establishing on dredged material because of low nutrient availability, inhibitory levels of toxins, unsuitable moisture conditions and lack of microorganisms capable of ameliorating these characteristics. To counteract these issues, we sought to understand if the use of a cover crop would increase the abundance, diversity and function of beneficial soil microorganisms compared to harmful microorganisms in dredged sediments. Materials and Methods We collected soil samples from two 100% dredged sediment plots, one where winter cereal rye (Secale cereal) was grown as a winter cover crop and one left fallow over the winter, followed by traditional corn (Zea mays) planting. We sampled both plots three times during the growing season: before cover crop application, following cover crop application but before corn planting and following final corn harvest. We then used high‐throughput sequencing to identify the bacterial and fungal communities present in the samples. Results Our data show that cover crop application did not alter the microbial community in these plots. However, sampling time decreased species diversity and altered the composition of both fungal and bacterial communities recovered from these plots. Across both plots, microorganisms associated with carbon cycling were more abundant than those associated with harmful effects, including microcystin‐producing cyanobacteria, which were an extremely small portion of the overall community. Conclusion Our work suggests that dredged sediments have the potential to improve soil function through the addition of microorganisms associated with nutrient cycling, but a cover crop is not necessary to incur these benefits