Pretrial risk assessment instruments in practice: The role of judicial discretion in pretrial reform

Abstract

We explored the extent to which the implementation of a pretrial risk assessment instrument (PRAI) corresponded to changes in the pretrial processing of defendants using multiple administrative data sources from a large county in the southeastern United States. Our findings revealed little evidence of reductions in detention lengths or increases in the use of nonfinancial forms of release following the tool's adoption. This was largely attributable to the exercise of judicial discretion, as judges frequently departed from the tool's recommendation using alternatives that were more punitive and often included financial conditionsparticularly for Black and Latino defendants. Furthermore, the exercise of discretion was linked to increased rates of pretrial failure. Policy Implications: PRAIs were adopted on a massive scale with the understanding that they are evidencebased and geared toward efficiently and equitably reducing pretrial populations; however, we are lacking the evaluative work to determine their impacts. Our findings suggest that PRAIs may not only undermine reform efforts, but may worsen disparities, if communities fail to complete the up-front work of discussing their expectations for pretrial decision making, including the

Pretrial Decision-Making Matrices: The Role of Risk and Charge Weighting in Risk Assessment–Guided Decisions

“…Through pretrial reform efforts, many jurisdictions implemented pretrial risk assessments as an alternative to financial bail. Prior research has shown that implementation of pretrial risk assessments is associated with a reduction in financial bond decisions (Cooprider, 2009; Copp et al, 2022; Lowder et al, 2021; Sloan et al, 2018; Stevenson, 2018). This is true even in a state such as Indiana, where pretrial defendants retain a constitutional right to bail (Indiana Constitution, Article 1, §17).…”

“…However, among typically sized matrices (i.e., those that were 3 × 3 or 3 × 4), we found no consistent evidence that pretrial risk assessment consideration was lower among more serious charge types. Finally, previous studies have examined rates of adherence to structured guidelines in the pretrial context (Copp et al, 2022; Danner et al, 2015; Lowder et al, 2021; Lowder & Foudray, 2021), and we used these estimates to project the potential influence of risk assessments on decisions. We do not know the exact rates of adherence to structured guidelines across all 29 counties that provided matrices.…”

“…Another multijurisdictional study found slightly lower rates of adherence to structured guidelines for supervision decisions (60%; Lowder & Foudray, 2021). A final study in a single jurisdiction found much lower rates of adherence to structured guidelines in a 2-year postimplementation period (25%-47%; Copp et al, 2022). Overall, existing evidence suggests rates of adherence to structured guidelines vary considerable across localities and decision-making contexts.…”

“…There is growing, but still limited, research examining the effects of pretrial risk assessment implementation on pretrial release and misconduct outcomes. A handful of studies have provided consistent evidence that use of pretrial risk assessments can contribute to higher rates of nonfinancial release (e.g., release on own recognizance) and lower rates of financial bond decisions (Cooprider, 2009; Copp et al, 2022; Lowder et al, 2021; Sloan et al, 2018; Stevenson, 2018); however, the magnitude of these effects and their stability over time varies considerably across studies. There is more limited evidence for pretrial misconduct outcomes.…”

“…A final study found that judges frequently departed from structured guidelines, overwhelmingly in favor of more restrictive release conditions. These departures were also associated with higher rates of failure to appear and rearrest during the pretrial period (Copp et al, 2022).…”