Leigh Parise: Policymakers talk about solutions, but which ones really work? Welcome to Evidence First, a podcast from MDRC that explores the best evidence available on what works to improve the lives of people experiencing poverty. I'm your host, Leigh Parise.

As part of the criminal justice system, the pretrial system is set up to ensure individuals appear in court to maintain public safety and maximize pretrial release. But over the last few decades, a more punitive approach to pretrial justice has evolved, wherein jailing individuals who haven't been convicted of a crime has become the norm in many jurisdictions. In many cases, individuals remain in jail pretrial simply because they cannot afford the cash bail set in their case. As a result, people with low incomes, unable to pay for their freedom, are most likely to suffer the consequences of pretrial detention, including major disruptions to work and family life, really regardless of their likelihood of returning to court or the risk they pose to public safety. To combat the rise in jail populations and to make pretrial practices more equitable, jurisdictions across the country are seeking to reform their pretrial systems.

In this episode, I am joined by Brit Henderson, a research associate at MDRC's Center for Data Insights and Center for Criminal Justice Research, to discuss what we know about the effectiveness and implementation of these initiatives. Thanks so much for joining me, Brit.

Brit Henderson: Hey Leigh. Good to be here.

Leigh: Brit, can you just give us a little bit of background on what the pretrial system is?

Brit: So, the pretrial justice system is the period from when a person is first arrested up until their case is resolved. Remember, this is before a person has been convicted of any crime. And so typically, early on in that process, a judge or a magistrate makes a decision about whether or not this person is going to be released. Or whether or not they are going to be detained.

Leigh: That's really helpful background. Can you tell us, what are some of the goals of the reform efforts that are happening now?

Brit: That's a great question. And so first I'll talk about the goals of the pretrial system overall. And first and foremost, the goal of the pretrial justice system is to ensure that individuals appear in court, that they’re meeting all the requirements in order to get their case resolved. Then, in the 1980s, you saw a lot of jurisdictions taking a more punitive approach to their pretrial practices and policies. And a lot of that was spurred by the U.S. vs. Salerno Supreme Court case, which actually introduced the use of money bail and pretrial detention as a means of protecting public safety, rather than simply ensuring court appearance. Now U.S. vs. Salerno actually states that liberty is the norm and pretrial detention should be the carefully limited exception. But this is not what always happens on the ground. And what we often see instead is that jurisdictions are defaulting to the use of money bail and that's resulting in high rates of pretrial detention.

And so the goals of pretrial reform are, in some ways, a response to that ballooning jail populations that you're starting to see. A lot of the reforms are aiming to maximize pretrial release or minimize pretrial detention. But really to kind of reverse the trends that have happened, all while still maintaining those high court appearance rates and protecting public safety. Also, [in] a lot of the reforms more recently, you see jurisdictions being increasingly aware of some of the racial inequities that are widespread in their criminal justice system. A lot of reforms are actually trying to document that and also find solutions to start reversing some of the racial inequities and reducing racial disparities.

Leigh: That's really helpful. Thank you. I think what I'm hearing you say is that the use of cash bail, or some of these policies that are keeping people detained pretrial, are not necessarily being applied evenly across people, across race, or across income status. Is that right?

Brit: Exactly.

Leigh: Okay. Can you tell us about some of the promising initiatives that are currently underway?

Brit: Yeah, definitely. We think about the different types of pretrial reforms in two broad categories. In one group, you see policymakers starting to take steps to prevent the overuse of pretrial detention. And they do this by putting in place policies that limit the circumstances in which money bail can be set. We describe these types of reforms as strengthening the presumption of release.

And then another group of reforms are aimed at introducing services to support people who are released while awaiting resolution of their charges. And we tend to describe those as pretrial supports. And this includes things like court reminders, which are great at addressing some of the primary reasons people miss court appearances—things like forgetfulness, family or work obligations, or transportation barriers. And it also includes pretrial supervision programs, which typically involve a combination of phone and in-person check-ins with a case manager or a supervision officer. And these programs tend to vary. They can be more social work-oriented, where the person is being referred to different services that might actually address some of their underlying needs. Or they could be purely focused on enforcement.

Leigh: That's really interesting to hear about. I'm going to ask you a question, because there might be people who hear about that second group in here, providing services to people who've just been arrested. Like that seems like maybe those people shouldn't be getting services; they just got arrested. Can you say a little bit more about some of the thinking or the theory behind that set of supports?

Brit: I think it just is trying to get at some of the root causes and understanding that there are a lot of systemic issues that tend to co-occur, the same way that there are systemic inequities that overlap. And a lot of times you see that a large proportion of people who are being arrested are actually dealing with things like substance use disorder or homelessness or mental health concerns. So, it's just recognizing that maybe these people could benefit from additional services.

Leigh: Do you think there's any part of it that's also about supporting efficiencies, like within the system? That it's actually better for the system if people are showing up when they should be and making sure that they know when their court appearances are and kind of following all of the procedures that are in place.

Brit: That’s a great question. Clearly one of the goals of any pretrial reform is to ensure that the system is functioning in an efficient and fair way. When people miss court appearances, that is actually costly; there's a lot of administrative fees and stuff that have to go into rescheduling these court appearances, getting people re-docketed.

Leigh: Those are really interesting to hear about. I would love to hear from you about: what do we know about the effectiveness of these effort at keeping the public safe, ensuring that folks actually show up to court, and keeping people out of jail?

Brit: There's evidence that both of these broad categories of reforms can be helpful. For example, when it comes to pretrial supports, court reminders have been shown to increased court appearance rates. Now research on the effectiveness of pretrial supervision programs is fairly limited, but MDRC evaluated New York City's supervised release program and found that it successfully met its goals of reducing the use of cash bail and pretrial detention—without any significant increase in missed court appearances or arrest.

For those jurisdictions that are aiming to strengthen the presumption of release without monetary conditions—examples include Cook County, and that's where Chicago is located, and Philadelphia. Typically, when they've implemented these kinds of reforms, they've seen that the use of cash bail is substantially reduced. And, of course, this means a decrease in financial strain on those people who've been arrested. They often have seen that the reforms have resulted in a reduction of cash bail, and that is typically not accompanied by an increase in rearrests and has modest or no effects on court appearances. And that just suggests that setting a financial deterrence in a form of cash bail isn't necessary to ensure court appearance rates and maintain public safety.

Leigh: Are there any pitfalls that jurisdictions implementing these kinds of reforms should really be on the lookout for?

Brit: Leigh, I'm so glad you asked that. I mean, I think if any type of pretrial reform, it's important to be constantly monitoring how it affects all parts of the system. One example that comes to my mind right away is what's called “net widening.” Sometimes you see this in jurisdictions that have introduced some type of pretrial supervision program. Net widening is the situation in which people who normally would've been released on their own recognizance without any additional conditions are now being mandated to pretrial supervision, simply because it exists as an option and makes judges feel safer about releasing people. But there's not any evidence that these people actually need the supervision.

It's a problem, not only because it places additional burdens on the people who are having to meet these check-ins. But it also puts them at increased risk because if they were to miss one of these check-ins with their case manager, they could actually be issued a bench warrant and rearrested. And that just increases their criminal justice contact and involvement. That just means that any criteria for this type of mandated supervision needs to be regularly revisited and reassessed, both in terms of who requires supervision as well as the extent of reporting requirements.

Another concern that might come up with any type of reform is whether or not its benefits are being distributed in a racially equitable way. An example where this was a concern is Philadelphia's no cash bail reform. That was, again, an example of a jurisdiction that was strengthening the presumption of release by reducing the types of charges that are eligible for monetary bail. But what they saw was magistrates were disproportionately granting white people release without conditions and not doing the same for Black people. So, the benefits of the reform were not being distributed equitably.

Leigh: Those feel like really important things for people to be watching out for, as they're starting to implement some of these reforms. So, that's helpful. All right, so what would you say are some of the next steps or further questions that researchers need to be looking at in order to help the people on the ground think about what makes sense or what to consider?

Brit: First and foremost, there's still a lot that is unknown about the ideal way to apply these broad approaches. That's especially true given how fragmented and localized criminal justice systems are in the U.S. So, one size will likely not fit all.

It also just kind of depends on where a jurisdiction is. If you have a jurisdiction that is just starting to develop and planning to implement reform, that's a really good time for change-makers to bring in a wide, diverse variety of stakeholders. And that's going to include system actors, but also people with direct lived experience having an open case in a pretrial system. It's important to get all those people at the table and get their early input and increase their buy-in through that continued collaboration.

In terms of what reforms seem most approachable, I think court reminders seem like low-hanging fruit. And jurisdictions could even experiment with what modes and types of messaging work best for those. Or jurisdictions could try gradually reducing the number and types of charges for which money bail is an option. Starting with a few lower-level offenses and then gradually building up as the jurisdiction feels comfortable and safe doing so. Also it's just important to remember that jurisdictions can work with what's already in place. For example, in a lot of the jurisdictions we've worked with, they have pretrial supervision programs, but they're not always utilized completely as an alternative to money bail. So, jurisdictions could consider using that more instead of money bail.

They could also try assessing whether having a more social work-oriented pretrial supervision program is better than having one that's purely focused on enforcement. And then for those jurisdictions that have already been implementing reforms, it's a good time to start evaluating, monitoring, and recalibrating things that they've put into place. And there are a lot of ways they could do that. They could use rapid-cycle testing to see how minor tweaks affect the broader system. They could also consider building dashboards to keep a finger on the pulse of the system overall. These types of steps can be really important for making sure inequities aren't popping up between different subgroups of people with active cases.

Leigh: Great. Thank you. It sounds like you're involved in a wide variety of work that feels really important—because, just in this conversation, it's been clear that there are so many different actors within the system. It's important to acknowledge the variety of stakeholders and what changes within the system will mean for each of those people, and the kind of information that they need. And the implications are both for the individuals within the system and for the public more broadly. Brit, thank you so much for joining me today. This has been a really great discussion.

Brit: Thanks so much for having me, Leigh.

Leigh: To learn more about MDRC Center for Criminal Justice Research, visit mdrc.org.

Did you enjoy this episode? Subscribe to the Evidence First podcast for more.