The Pretrial Status Quo

The Status Quo

Many pretrial practices used today are decades old. The use of money as a condition of release leaves people in jail who can be safely released and allows people who pose a real threat to personal and community safety to be released. Punitive release conditions—the default in many jurisdictions—do not support pretrial success. They do the opposite: they make people more likely to lose jobs, housing, and family ties.

Often, these practices undermine core American legal principles, such as the presumption of innocence and the notion that physical liberty can be restricted only when the state has proven it is absolutely necessary.

Unfortunately, the legal framework for pretrial release and detention is often not followed when making pretrial decisions. And many system stakeholders are not aware of research showing that most people succeed on pretrial release—and that some restrictive conditions do not impact (or can harm) court appearance rates and community safety.

No wonder the current system generates poor results.

Examining the Status Quo

A comprehensive and honest assessment of pretrial practices is likely to find:

• A collection of justice system agencies operating in silos without a collaborative process to review practices and procedures
• A pretrial system that suffers from systemic racism, with Black, Latino, Indigenous, and other people of color disproportionately arrested, booked, subjected to higher financial conditions of release, and detained
• The absence of the voices and expertise of people most impacted by the pretrial system
• An overreliance on custodial arrest instead of citations or summonses for lower-level offenses
• The default use of secured financial conditions, resulting in the detention of people without access to money and the release of others, even if they pose a danger to community safety or of flight
• The absence of defense counsel at hearings where a person’s liberty is at stake
• No one advocating for the person charged with a crime
• A default setting of release conditions that are not the least restrictive or individualized
• A pretrial services agency focused on monitoring compliance with a long list of conditions rather than supporting people’s success with referrals to community-based services

Changing the Status Quo

The first step to redesigning pretrial systems is recognizing what isn’t working. System and community members must ask this question: Is it acceptable to rely on financial conditions, have significant racial disparities in detention, and see few benefits to community well-being?

APPR’s objective—and that of system and community stakeholders engaged in pretrial improvements throughout the country—is to achieve fair, just, effective pretrial practices, every day, nationwide. This includes:

• Eliminating disparities in the current system
• Engaging key decision makers and the communities most affected by crime and incarceration in the process

Improving pretrial systems requires a comprehensive approach. APPR advocates a holistic review of pretrial systems. A single step—whether eliminating financial conditions, instituting pretrial services, or identifying ways to treat people with mental health or substance use issues—is not enough to achieve pretrial justice. There needs to be a wholesale reevaluation of how pretrial decisions are made.

What we do isn’t the only issue. How we make change is equally important. Meaningful systemic and sustainable change happens when stakeholders from all agencies are involved and the community is engaged in meaningful ways.