From Alison Shames and Matt Alsdorf, co-directors, Advancing Pretrial Policy and Research
Looking back at 2023, our team at Advancing Pretrial Policy and Research (APPR) believes the year will be seen as a tipping point for the field of pretrial justice. It was the year a growing number of real-world examples demonstrated that the “sky will not fall” when a pretrial system ends its reliance on financial conditions of release, aka money bonds. To the contrary, we witnessed not only a growing recognition that money-based pretrial systems produce unjust, inequitable, and ineffective outcomes, but that there is another, better way.
In 2023, Illinois implemented the Pretrial Fairness Act (PFA), a hard-won overhaul of the state’s pretrial system, to become the latest jurisdiction to embrace the best, most current thinking in the field—and the first to completely eliminate the use of financial conditions of release. It created a pretrial system that makes rational, intentional in-and-out decisions, supports pretrial success, and gathers data to monitor and continuously improve system performance. Illinois built on the trailblazing work of New Jersey, New Mexico, the District of Columbia, and the federal system to provide yet another example that there is a better model for making pretrial decisions—one that can work in the real world. The PFA is a massive boost to momentum in the field that has been building for years, and we expect to see more states and local jurisdictions move in this direction in 2024.
What’s more, recent reforms in Illinois and elsewhere embody the values that guide our work at APPR: collaboration, equity, fairness, human dignity, integrity, and transparency. These jurisdictions are demonstrating that we can have both legal, evidence-based pretrial advancements and value-driven practices.
A Roadmap for Pretrial Advancement
We were pleased to see that the progress made everywhere from small counties to large states, including Illinois, incorporated many of the elements listed in APPR’s Roadmap for Pretrial Advancement—in particular, elevating pretrial supportive services and establishing a system of preventive detention.
We focus on these elements because they are what “replace money” in a modern pretrial system. Money bonds have persistently been used for two purposes: as a condition of release meant to reasonably assure court appearance and public safety, and as a way to detain someone pretrial. But as we’ve long known, money does neither of these things effectively or fairly. What we saw this year across the country was a growing move to replace money with practices that actually work: the use of supportive services as a condition of release to improve pretrial outcomes, and a system of preventive detention to intentionally detain people pretrial in a way that is consistent with constitutional and state law.
Supportive services: Empirical research provides no evidence that releasing someone on a secured money bond increases their likelihood of returning to court or remaining arrest-free. We have known for years that most people succeed pretrial with minimal, if any, conditions of release. Modern pretrial improvements incorporate this knowledge along with our new understanding of common-sense, light-touch supportive services that maintain, or even significantly increase, appearance rates.
These approaches work because most people who miss court are not willfully fleeing justice. Instead, they may have life circumstances—work, transportation, illness, childcare responsibilities—that get in the way. They may not understand where and when to appear. Or they may have simply forgotten. We can address these factors with responses that do not involve money bonds.
In 2023, APPR reported on several jurisdictions that favor supportive pretrial services over reactive and punitive approaches to missed court appearances, including Sacramento County, California and San Francisco, Maine, and Wisconsin. A growing body of research shows these practices to be effective.
Preventive detention: Illinois joined several other states and the federal system by establishing a clear and transparent process for preventive detention. For decades, jurisdictions have gambled that high money bond amounts will keep people they believe are dangerous in jail. We know that this practice is often ineffective (people who pose a risk to public safety often have financial means) and likely legally impermissible (a number of courts have held that money cannot be intentionally used to detain). Moreover, it results in widespread detention of people who courts never intended to hold in jail.
In a preventive detention system, at any point before a case is adjudicated, prosecutors may request a separate, adversarial, and procedurally sound hearing where the judicial officer must make an “in-or-out” decision. At the detention hearing, the prosecution and defense present their arguments for and against detention and may call witnesses and submit evidence. Rather than guessing at a dollar amount that the accused cannot afford—and purposefully operating a wealth-based detention system—these hearings better enable courts to detain only those people shown to warrant pretrial incarceration.
Collaboration Within Systems and With Community
Illinois-style improvements demonstrate not only what works, but how to get there: through collaboration and a solid commitment to cultural change.
Sustained collaboration is the “secret sauce” behind every successful pretrial advancement effort. Establishing commissions, task forces, workgroups, and other multi-disciplinary, cross-agency and community-inclusive groups is essential to understanding how the current system works—and doesn’t work—and to designing improvements that deliver better outcomes for everyone. In fact, we don’t think it can happen any other way.
In 2023, we produced stories on successful collaborative efforts in Cass County, Indiana, Youngstown, Ohio, and El Paso County, Texas, and published a guide on effective, collaborative community engagement.
A Recommitment to American Legal Principles
A persistent barrier to pretrial reform is the many outdated and harmful pretrial practices that have been cemented into our cultural understanding of how things should be done. Changing the culture is perhaps the most difficult part of improving systems.
Luckily, Americans value the importance of constitutional and common-sense notions of liberty, fairness, and individual rights. The pretrial field is experiencing a re-affirmation of the American legal standards of equal justice, the presumption of innocence, and the presumption of release prior to conviction. Illinois and the other jurisdictions we’ve named prove that we don’t need to create a new legal framework for pretrial justice; we need only return to the guiding legal principles we’ve had all along.
Advancing Evidence-based Practices
Lastly, our field is fortunate to have a steady stream of high-quality research produced by local and state jurisdictions, nonprofit organizations, and academic researchers. This research adds to our knowledge of what works: pretrial practices that minimize detention and maximize safety and rights. Check out our 2023 Pretrial Research Overview to see some of the most impactful studies. In addition to outcome data from places that have improved their systems, we hope in the coming year to see more research on the effectiveness of limited and targeted pretrial release conditions and pretrial services.
Looking Ahead
We have enormous optimism about continued progress in the coming year, but we harbor no illusions that it will be smooth sailing. Every jurisdiction that has embarked on major system improvements has seen headwinds, often in the form of misinformation and disinformation about the community safety implications of proposed changes. But there are no data that connect increases in crime (real or perceived) to pretrial improvements. And as those changes are put into law and practice, the sky doesn’t fall. On the contrary, what we see are jurisdictions that are finding a better way to deliver on the promise of pretrial justice for all.
We, and the entire APPR team, are grateful and awed to be part of this constantly evolving field. We look forward to continuing this journey with you in 2024 and beyond.
— Alison and Matt