We Need More Bail Reform

Clifford T. Keenan, Director

September is Bail Month. Bail Month features activities aimed at educating the public on the need for bail reform in America’s courts. Most jurisdictions across the nation continue to rely on money bail as the mechanism for release and detention, albeit almost 50 years since the Bail Reform Act of 1966 introduced the concept of least restrictive nonfinancial pretrial release and over 40 years since the Court Reform and Criminal Procedures Act of 1971 set forth legal statutory-based pretrial detention of truly dangerous defendants. Money bail contributes to unnecessary detention of many low-risk pretrial defendants, inappropriate release of high-risk defendants who have financial means, unwarranted financial burdens on low-income communities, and the gamble of placing public safety in the hands of a bail bonding industry that always will put profit before the public good.

While there is much work still needed throughout the country, there is also much progress being made toward pretrial reform. Pretrial Justice Institute Executive Director Tim Murray notes, “Bail Month is undoubtedly a time to renew our commitment to pretrial reform, it is also time to celebrate. There is wonderful work being done by an ever-growing coalition of professionals who refuse to accept a status quo that is anything less than the best we can do for our communities.” For many criminal justice professionals and advocates looking to reform their bail systems, the District of Columbia continues to be the model of fair and effective pretrial decision-making and programming.

In the District, we release about 85% of all arrestees, a much higher percentage than all but a few court systems. About 88% of all arrestees are not again arrested prior to trial.  Of those re-arrested, less than 1% are alleged to have committed a violent crime. About 88% of all arrestees return to court. Most significantly, and unique in the entire nation, the District accomplishes this without using money bonds. Money bonds that detain people are illegal in Washington, DC, as they should be everywhere.

The District operates an "in or out" court system where decisions about release or detention are made transparently and openly. The court employs a preventive detention statute that provides a due process appropriate procedure for fairly determining who is too dangerous or unlikely to return to be released. But, the use of preventive detention has been appropriately limited to about 15% or less of all pretrial accused persons.  Everyone else is released on his/her promise to appear in court or on conditions supervised by PSA – All done without money or bondsmen. This is what makes the District a model for the nation. Our system is fair, safe, and effective.

Several components of PSA’s bail system qualify as “best practices” in a system of effective pretrial justice, including:

  1. A bail statute that emphasizes least restrictive release for eligible defendants, statutory-based detention for those who would pose an unacceptable risk to the community, and an absolute prohibition on money-based detention.
  2. Progressive use of “cite-and-release” procedures by the Metropolitan Police Department for low risk defendants charged with misdemeanors. Citation release has helped increase the proportion (about 20% of persons securing release) of lower-risk defendants released on personal recognizance without supervision.
  3. Quick assignment of defense counsel prior to initial appearance. This affords defendants an effective advocate to support appropriate conditions of supervision.
  4. Prosecutorial charging decisions made within 24 hours of arrest. By statute, the United States Attorney must decide whether to charge arrestees or dispose of (“no paper”) the complaint. Quick charging decisions ensure that release/detention decisions are based on the most accurate charges and that defendants are not detained on charges that eventually are dismissed days or sometimes weeks later.
  5. A high-functioning pretrial services agency that helps courts make informed pretrial release and detention decisions and provides appropriate levels of supervision and treatment for released defendants. This has been a critical component of the court’s ability to move away from the money-driven system we had in 1970s and even the 1980s (in addition to the critical statutory language). 

These “real-world” elements of pretrial justice have captured the attention of reform-minded practitioners and policy makers across the country and around the globe. Over the past years, PSA has contributed to many pretrial reform efforts and elements of our pretrial justice system have been observed for possible replication by other jurisdictions.

At the invitation of the Crime and Justice Institute, PSA recently assisted the Alachua County, Florida, court services division in developing and implementing outcome measures for its new risk assessment tool. PSA has used some form of risk assessment since its inception in 1967—the longest continuous use of risk instruments in the pretrial field. Between 2009 and 2012, PSA developed and validated a new risk assessment tool which improves our ability to predict failure to appear, rearrest, rearrests on violent crimes, and new arrests on domestic violence offenses.

Many other jurisdictions have looked to the District’s pretrial justice model to inform their own plans for reform. This includes New Jersey, which is reviewing its state Constitution as well as its bail statutes; Ventura County, California, which is interested in reforming its pretrial procedures, particularly risk assessment; and the Republic of Georgia, which is interested in establishing a national system of pretrial release/detention based on the District and the Federal systems.

PSA actively supports efforts to share our experiences with other jurisdictions. PSA staff participated in a workshop on risk assessment implementation at the 2012 NAPSA Conference and in June 2013, the Administrative Office of the United States Courts featured PSA’s risk assessment in its publication Federal Probation. The National Institute of Corrections recent Legal Forum featured PSA’s Office of Strategic Development Director Surgeon Kennedy, DC Superior Court Senior Judge Truman Morrison, and myself to discuss the DC bail statute.

Advocates worldwide are looking at reforms at the pretrial stage to improve outcomes and assure fairness throughout their criminal justice systems. After nearly 50 years of service to the District of Columbia, it is a great honor and continuing responsibility to know that our system of reasonably assuring public safety and promoting pretrial justice is a model for those seeking true change in their bail systems. Through high-quality risk assessment, supervision and treatment procedures, PSA’s strategic initiatives will be the catalysts with which to focus the Agency’s strengths and opportunities to meet future challenges and issues and to continue PSA’s continuing development as an evidence-based organization.

September 2013 marks the second annual national Bail Month sponsored by the Justice Policy Institute (www.justicepolicy.org) and the Pretrial Justice Institute (www.pretrial.org).