Thank you, Alex. And let me acknowledge my fellow panelists, Michael, Cynthia, and Truman. These three have made such important contributions to this field, and their perspectives on the history and future of pretrial justice are critical.
You know, it’s interesting to go back and look at the proceedings from the 1964 conference. One of the themes that Bobby Kennedy hit on is the notion that the problems related to bail even at the time were not new. He cited a 1925 report from Arthur Beeley that underscored the weaknesses of the bail system, and he says this: “1964 can hardly be described as the year in which the defects in the bail system were discovered.”
I find that to be telling. It shows that our nation has been slow to address these very considerable challenges. Bail reform has been very much an evolutionary, not a revolutionary, process. Even today, a half-century removed from the first bail conference, fewer than 1,000 of the 3,000 counties in the United States benefit from services provided by some 300 pretrial programs.
I know it’s tough to talk about the lack of services in our counties and cities given the significant budget challenges so many of them are facing. I heard first-hand about those challenges a few weeks ago at a meeting with county officials at the White House, and I was assured – and I know – they remain very real.
But these fiscal challenges should provide the impetus to do what we’re all trying to accomplish here, which is to create a smarter, more effective system of justice. And in my view, that all comes down to taking the guess work out of the pretrial process and replacing it with sound, evidence-based decision-making.
So how do we do that? How do we create, going forward, a pretrial system whose principles rest on evidence and fairness?
I think the key – as the Attorney General suggested in his remarks – is to focus on individualized assessments of risk, as opposed to making categorical assumptions based solely on charging and other factors that really don’t tell us what we need to know.
Pretrial services agencies give jurisdictions an advantage here because they serve as a conduit of information that allows judges to make informed decisions. They’re also cost-effective. The average cost of county pretrial services supervision is less than $10 a day. But the important principle here is coordination – law enforcement agencies, probation departments, and the courts all sharing data that facilitate sensible decisions.
A number of agencies have adopted structured objective classification processes that help determine a defendant’s level of risk to the community and the likelihood that he or she will fail to return to court. And these pretrial risk assessment instruments are being used with greater frequency in jurisdictions across the country.
What we need to do is to help make sure these assessment tools are effective – and not just effective, but appropriate for the pretrial population. Some jurisdictions actually use instruments that are meant for post-adjudication risk assessment, which measure factors that don’t apply in the pretrial stage. So we need to make sure we’re targeting the right audience.
BJA and NIJ recently convened a meeting of researchers and practitioners to discuss the current state of the science with regard to pretrial risk assessment. One of the big themes that emerged was the need for information from all participants – judges, prosecutors, defense counsel, and others – including defendants themselves. Among other things, we need to understand what motivates judges’ decisions, and we need a better picture of why defendants who fail to appear or who commit new crimes do so. These are factors that need to be considered in developing risk assessment instruments.
We can also look at our success stories. A great example is right here in Washington – the D.C. Pretrial Services Agency. The Attorney General talked about the remarkable success they’ve had. The D.C. Superior Court holds only about 15 percent of pretrial defendants without bond. The remaining 85 percent are released. And yet the vast majority – almost 90 percent – remain arrest-free and return to court. Surely, this is an indication that pretrial services can be very effective.
We’ve provided support to the D.C. program to help adopt evidence-based practices, but I want to mention that I was talking to Susie Shaffer, the Director, recently, and she told me it really isn’t the funding that’s made the difference for her program. Rather, it’s having a culture where everyone relies on information to make sound decisions. In fact, she said that money tends to bring a lot of unnecessary baggage – and I’ve heard that from other quarters, as well.
So we’re working with other jurisdictions to help develop evidence-based tools. For example, this year BJA began supporting an effort in several Florida counties to create a validated risk assessment instrument that will be made available to all counties across the state. We’re doing something similar in Colorado.
The fact is, validated pretrial risk assessments are within the reach of every community – and evidence-based tools like these produce better outcomes than relying on a standard bond schedule.
This evidence-based approach to public safety issues is important across the criminal justice spectrum. I’ve made it a top priority at OJP. Shortly after taking office in 2009, I launched my Evidence Integration Initiative – we call it E2I, for short. Our goal is to both improve the quantity and quality of research and other evidence that we generate and get that information out to the field in a useable format.
And one thing I think is important about this is that this doesn’t just to apply to our research and data functions – in NIJ and BJS. It cuts across all our bureaus. Evidence and data should inform everything we do. And I’ve been very encouraged that the field has been working to meet us there. The work that so many of you are doing is a great example of that.
And we need to keep going. We need to make sure we’re collecting the right data to help local decision-makers determine what works best and with whom. We need to strengthen research on which supervision modalities work best when matched with specific risk factors. And we need to highlight pretrial practices that work – especially with regard to costs and outcomes – so that jurisdictions have a solid base of experience to work from.
The good news is that, although far too many communities lack effective pretrial services, a fair number do have programs. Many of the 300 pretrial programs in our country have moved or are moving toward data-driven, evidence-based models. So we’re making progress.
I think our challenge now is to instill in the system an evidence-based mindset – one in which reliable data – rather than politics or gut feelings – form the foundation for action. We’re getting there, but we’ll have to be diligent.