RECOMMENDATION 2
Base pretrial detention on risk
Recommendation
Courts should base pretrial detention decisions on public safety and flight risk.
Rationale
More than 60% of women in jail are detained pretrial without a conviction, often due to their inability to meet the financial conditions of their release.⁴⁰ Judges use pretrial detention to manage public safety risks and ensure court appearances. Research shows, however, that in many cases, detention may not be the most effective way to achieve criminal justice goals and can lead to worse outcomes for those detained. Even when crime type, offense severity, and criminal history are similar, people who are detained pretrial are more likely to be convicted, accept a guilty plea, receive a harsher sentence, and experience future justice system involvement than those who are not detained pretrial.⁴¹
Judges often impose financial conditions of release, but women have more difficulty affording bail than men. Recent research shows that women take longer to meet bail requirements, and in one study, only 39% of women posted bail, compared to 52% of men.⁴² Even short periods of detention compound harm by disrupting employment, housing, and family stability, factors that are themselves linked to future criminal behavior.⁴³ To avoid prolonged detention due to their caregiving responsibilities, financial strain, and past trauma, women are also more likely to accept plea deals.⁴⁴ These harms underscore the need to move away from relying on money as the primary condition of release.
of women posted bail
of men posted bail
Research indicates that pretrial release without financial conditions for most nonviolent, lower-level offenses does not have a statistically significant impact on crime.⁴⁵ Moreover, the cost of detaining a person awaiting trial is roughly nine times greater on average than supervising them in the community.⁴⁶ When accounting for the collateral effects of pretrial detention, such as lost wages and increased likelihood of recidivism, the costs are even greater. Some jurisdictions that have expanded pretrial release have recouped substantial cost savings while reducing failure to appear and recidivism rates.⁴⁷ Making pretrial release the norm is both sound crime control policy and consistent with constitutional presumption of innocence and protections of liberty.⁴⁸
Judges and court officials can make pretrial detention and release decisions based on public safety and court appearance risks using validated pretrial risk assessment tools, rather than a person’s ability to pay. Some assessments are tailored to account for women’s distinct risks, needs, and protective factors, which reduces the likelihood of overclassifying women’s risk and assigning unnecessarily restrictive conditions.⁴⁹ While concerns about potential racial bias in algorithmic tools remain, evidence shows that when these tools are carefully validated, transparent, and accompanied by judicial oversight, they can support more consistent and justifiable pretrial release decisions.⁵⁰ Ongoing improvement of these tools will expand their accuracy, predictive power, and overall utility.
Various strategies can also improve court appearance and recidivism rates. Text and phone call reminders, for example, have been shown to increase court appearances,⁵¹ and emerging evidence on other interventions, such as providing defendants transportation to court and working with defendants to schedule court dates or attend virtually, shows promise and may be particularly beneficial for women.⁵² Similarly, pretrial services tailored to the needs of individuals and families, such as housing support and behavioral health treatment, can be effective alternatives to detention in managing women’s risk and reducing recidivism.⁵³
When public safety and flight risks are low, pretrial release, including supervision conditions and services, supports stability and reduces the likelihood of future offending. Many women accused of violent crimes or assessed as higher risk may also be safely managed in the community with strong supports and supervision conditions.⁵⁴ Judges should make individualized determinations about whether non-financial conditions, such as electronic monitoring, travel restrictions, stay-away orders, or referrals to services, are necessary. In such cases, the least restrictive conditions that provide reasonable assurance of public safety and court appearance should be applied. Overly restrictive measures can backfire; for example, strict curfews or travel limits may prevent women from working, caring for children, or leaving abusive partners—factors that can exacerbate instability and increase the risk of reoffending.
When public safety and flight risks are low, pretrial release, including supervision conditions and services, supports stability and reduces the likelihood of future offending.
Pretrial detention and financial conditions are intended to protect the community and compel court appearance, but in many cases, such measures are unnecessary and counterproductive. In the absence of a clear public safety risk that cannot be effectively managed in the community, judges should avoid detention and instead use other proportionate measures that produce better outcomes for women, families, and communities.
Implementation Steps
1
Courts should use validated pretrial risk assessments, along with supplemental defendant-specific context, to evaluate risk to public safety and of someone fleeing to avoid prosecution.
- Risk assessment tools should be specifically designed to account for women’s risk and need profiles and protective factors.
- Risk assessment tools should be periodically revalidated with support from technical assistance providers, using local population data and with close attention paid to the tool’s accuracy across different demographics.
- Researchers should rigorously evaluate outcomes of gender-responsive pretrial risk assessment tools for women.
2
Prosecutors should recommend pretrial release during initial hearings for people identified as low-risk.
3
Judges should employ the least restrictive conditions and terms of pretrial release, based on the specific risks and circumstances of the case and defendant.
- Courts should refrain from requiring financial payment as a condition of pretrial release. To mitigate the risk of failure to appear in court, courts should enhance pretrial and supportive services, including phone and email reminders, virtual hearings, transportation, and childcare support options.
- When setting pretrial release conditions, judges and other pretrial decision makers should factor in all responsibilities of the defendant. This can include employment, caregiving, and civil court involvement responsibilities. For example, courts should ensure that pretrial travel and curfew restrictions do not impede a person’s ability to transport their children to school or custodial visits, or to commute to their workplace. Likewise, courts should carefully consider the impact of time-intensive conditions—such as mandated participation in substance use counseling, frequent in-person reporting to a pretrial supervision officer, or regular drug tests—on other release conditions and day-to-day responsibilities, including employment or caregiving.
- To mitigate risk and promote individuals’ success on pretrial release, courts should expand and prioritize pretrial service offerings, including through partnerships with pretrial service agencies and other community-based organizations.
4
States should guarantee access to counsel for defendants at initial appearance proceedings, when pretrial release determinations often occur.
5
Representatives from major criminal justice agencies and service providers should conduct regular jail population reviews to identify who remains in jail pretrial and why.
6
Judges, defense counsel, and other court officials should receive training in the use and interpretation of risk assessments, paired with defendant-specific information, to inform pretrial release determinations and conditions.
7
Pretrial service agencies should receive training in effective practices for supervising people awaiting trial, including strategies to facilitate court appearances and deliver supports tailored to individual circumstances.
Data Gaps and Opportunities
Data on the following indicators, disaggregated by sex and race, are critical to understanding and improving the use of pretrial release:
- Pretrial release rates, including data on release status by case type and assessed risk level
- In states that use money bail, data on bail amounts and the time it takes for defendants to post bail
- Public safety outcomes, including data on rates of re-arrest for new offenses during the pretrial period
- Pretrial supervision outcomes, including data on court appearances, the frequency and types of violations of pretrial supervision conditions, and access to pretrial and community services
