Human Rights Watch issued two question and answer documents addressing key issues of pretrial incarceration in the US criminal justice system. The first document describes how the prevailing money bail system works, the harm it causes, and possible alternatives. The second explains in detail how the most commonly used of those alternatives, profile based risk assessment, operates and its potential to be as harmful as the money bail system it would replace.
“The question and answer documents argue that pretrial incarceration should be greatly reduced, and that profile based risk assessment is simply replacing one unfair system of incarceration with another,” said John Raphling, senior criminal justice researcher at Human Rights Watch and author of the documents. “The documents propose an approach to pretrial incarceration based on strictly limiting who is subject to detention and only allowing detention after fully litigated, individual hearings based on the evidence.”
Courts in the US hold people in jail while their cases are being decided by setting an amount of money that must be paid to secure release. While wealthy people can pay bail, the vast majority of those accused of crimes are faced with the choice of going into debt to raise the money, suffering in jail for months or even years before going to trial, or pleading guilty just to get out of jail sooner.
Judges and prosecutors often set bail knowing that pretrial incarceration will pressure defendants to plead guilty sooner, regardless of actual guilt. This system processes criminal cases more rapidly, but undermines US courts’ credibility and results in unjust outcomes for hundreds of thousands of people.
There is a growing movement to end the injustice of money bail. However, much of the reform effort is focused on replacing it with profile based risk assessment, a system of pretrial incarceration that relies on algorithms that purport to estimate the risk that the person will be re-arrested or miss a court date if released pretrial.
Critics of this system point out that it is unfair to jail people based on statistical estimates of their future behavior. The estimates derive from criminal history, which is greatly influenced by systemic racial bias in policing and in the courts. The risk assessment tools purport to give objective estimates of risk, but, in fact, are riddled with bias and can be freely adjusted by the same judges who use money bail to coerce guilty pleas, to use them for the same purpose.
“Ending money bail without addressing the power structure that drives pretrial incarceration will not achieve the goal of lowering pretrial incarceration rates, or reversing the harm of mass incarceration in the long run,” Raphling said. “True bail reform means rules that strictly limit the ability of judges and prosecutors to jail people pretrial and only allowing incarceration for those few proven to be a specific danger or flight risk if released.”