Fairness is Fiscally Responsible

By Jane WisemanStephen Goldsmith • June 27, 2016


This post is an expanded version of a column that originally appeared on Governing.com.

Few opportunities produce such dramatic better faster cheaper savings for cities and their counties than those that surround pretrial detention. We’re wasting $3 billion a year, often inducing crime and job loss, by holding the wrong people while they await trial. The problem: only 10% of jurisdictions use risk data analytics when deciding which defendants should be detained. As a result, dangerous people are out in our communities while many who could be safely in the community are behind bars. Vast numbers accused of petty offenses spend their pretrial detention time jailed alongside hardened convicts, learning from them how to be better criminals.

Data-smart pretrial justice

Ideally, deciding who should be in jail and who can safely be released would be based on the individual’s risk of not showing up for court and their risk of committing a crime while awaiting trial. Instead, the deciding factor is often the defendant’s pocketbook – those who have the money for bail (including those who are more successful criminals) get out, while the rest remain in jail. Nearly half of Americans don’t have $400 for emergencies – if they get arrested, that half of our population is going to stay in jail until trial or a guilty plea.

Although dangerous felons are held longer in jail awaiting trial, the volume of misdemeanants held pending minor offenses fills the jails, even when held for a short time. Some are held longer than the sentence for their accused crime, often because they cannot afford bail. One extreme example of someone held because he couldn’t afford bail is a 16-year old accused of stealing a backpack and unable to pay his $3,000 bail who stayed at Rikers Island for 1,111 days at a cost to taxpayers of $510,545. While this is an extreme example of lengthy and costly pretrial detention, it is not uncommon for defendants to wait months or years for their case to be resolved. Each jail day causes lost wages and weakening connection to friends, family, and community. The long-term economic impact of incarceration is an earnings drop of 40%.

Meanwhile, dangerous individuals are released using money bail, often with deadly results. In Lakewood, Washington, a man who had threatened police officers was released from jail by paying his bail not once but twice while awaiting trial and, while out, killed four police officers.

In this era of big data, analytics can predict and prevent crime and can discern who should be diverted to treatment for underlying mental health or substance abuse issues. Yet too few jurisdictions are using data for pretrial decisions.

Jurisdictions that do use data to make pretrial decisions have achieved greater fairness, lower crime, and lower costs. Washington, D.C. releases 85% of defendants awaiting trial. Compared to the national average, those released in D.C. are two and a half times more likely to remain arrest-free and one a half times as likely to show up for court. The results are lower jail costs and lower crime.

Louisville implemented risk-based decision making using the tool developed by the Laura and John Arnold Foundation and now releases 70% of defendants pretrial. Those released were twice as likely to return to court and to stay arrest-free as those in other jurisdictions. The Mecklenburg County, North Carolina jail population has dropped 20% since they began using the Public Safety Assessment-Court tool which is now being implemented in 29 other jurisdictions.

To date, no rigorous cost-benefit studies have examined pretrial programs. However, a detailed model allows jurisdictions to analyze the potential costs and benefits of various scenarios. Release is clearly lower cost than detention. Defendants released on their own recognizance cost essentially nothing. For a defendant released and supervised while awaiting trial, the cost is 90% lower than the cost to incarcerate ($7.17 per day for supervision versus $74.61 to detain). While not a direct comparison, it may be helpful to note that applying risk assessment to probation supervision returns $3.42 for every dollar invested.

Few jurisdictions have calculated the financial impact of risk-based pretrial decision-making and the resulting avoided jail cost. All of those who have examined cost have found savings. Selected examples of financial benefit include:

  • Mesa County, CO saves $2 million per year with their risk-based pretrial program without compromising public safety.
  • Allegheny County sent 30% fewer pretrial defendants to jail to await trial within a month of implementing risk-based pretrial practices. A program to release some defendants to electronic monitoring saves $1 million per year.
  • When the Southern District of Iowa implemented risk-based detention, they released 15% more defendants and saved $1.7 million.
  • The State of Maine saves $2 million per year using a risk-based pretrial assessment.

What if pretrial systems were based on risk, not money? Experts say that up to 25% of those detained pretrial might be safely released. Those with lower risk, such as older defendants with clean records accused of nonviolent crimes, could be released, while those with higher risk—for example, younger defendants with multiple offenses on their record—might merit supervision or detention. Those who can safely await trial in the community can continue working (and paying taxes), taking care of their families and contributing to society.

Releasing 25% more defendants in jurisdictions that currently do not make data-driven decisions translates into an estimated $3.15 billion of avoided jail costs ($14 billion total pretrial jail cost x 90% of jurisdictions not currently using risk based decision-making x 25% more defendants released). This may understate potential avoided costs due to reduced future incarceration. Research shows that pretrial detention increases chances of a prison sentence and of a longer sentence as well as the individual’s likelihood of future convictions.

The avoided costs aggregating in the billions could be better spent on detaining high-risk individuals, more mental health and substance abuse treatment, more police officers, and other needed public services. Diverting $3 billion from jails could triple the number of home visits for at-risk babies, immunize six times as many children, or double spending on heart, lung and blood disease research.

There are a number of promising developments over the past year, including generous investments from the Bureau of Justice Assistance’s Smart Pretrial grant program, the Laura and John Arnold Foundation, the MacArthur Foundation’s $75 million Safety and Justice Challenge, and the Open Society Foundation’s investment to spread a promising approach to divert low-level drug offenders from the justice system to treatment. According to Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute, “Americans are waking up to the importance of pretrial justice practices and policies and starting to realize that many of the justice challenges we’re all working so hard to fix—erosion of police-community trust; mass incarceration; racial, ethnic and economic disparities—all have roots in the pretrial stages of justice. Thankfully, we understand why these practices have failed and how to improve them.”

If we know the answer, why isn’t every jurisdiction moving toward data-driven pretrial decision-making? One of us served as a three term “tough-on-crime” district attorney and the other as a high-ranking state criminal justice official—yet neither of us saw much semblance of a systemic approach. Change that involves multiple stakeholders is hard, and requires dedicated leadership. Only a coordinated system can accurately balance community risk and benefit. There will be mistakes — someone released will commit a serious crime, leading to judicial embarrassment. But large-scale incarceration of low-risk minor offenders creates more crime. Many jails are like slow factories that build excess inventory in the warehouse because their machinery does not operate with sufficient fairness and efficiency.

Data-driven approaches are beginning to produce benefits from arrest through adjudication. Dashboards now exist in a handful of jurisdictions, allowing the public and public leadership to see court waiting times by offender type, and to identify and address processing bottlenecks. Fast-tracking minor cases allowed Tarrant County, TX to reduce its jail population by 40%; mental health diversion resulted in $10 million in savings per year in Bexar (San Antonio) County, TX; and New Orleans reduced crime while witnessing a 2/3 drop in jail population using risk-based pretrial decision-making and choosing to use a summons over detention for low level offenses such as disturbing the peace and marijuana possession.

We have the tools to reduce jail populations, injustice, crime and taxpayer expense—a grand slam of benefits. As more jurisdictions realize that what is just is also fiscally responsible, we can achieve a greater level of data-driven decision making in the pretrial stage of our justice system. It might not solve all of the challenges of achieving justice, but it’s a good place to start.


About the Author

Jane Wiseman

Jane Wiseman is an Innovations in American Government Fellow at the Ash Center for Democratic Governance and Innovation. She leads the Institute for Excellence in Government, a non-profit consulting firm dedicated to improving government performance.  She has served as an appointed official in government and as a financial advisor and consultant to government.  Her current consulting, research, and writing focus on government innovation and data-driven decision-making.  She supports an effort to create a national network of urban Chief Data Officers to accelerate the use of analytics in local government.  She has advised the US cities funded by Bloomberg Philanthropies in their Mayors Challenge competition.  She has written on customer-centric government, data-driven decision-making in government, pretrial justice, and 311 for a variety of audiences. 

Her prior consulting work has included organizational strategy, performance management and eGovernment strategy work for Accenture and Price Waterhouse.  Selected clients include the National Governor’s Association, the United States Department of Veterans Affairs, the National Criminal Justice Association, the Commonwealth of Massachusetts, the United States Postal Service, the State of Michigan, the United States Department of Housing and Urban Development, and the United States Department of Commerce. 

Ms. Wiseman has served as Assistant Secretary, Massachusetts Executive Office of Public Safety and as Assistant to the Director for Strategic Planning, National Institute of Justice, United States Department of Justice.  Ms. Wiseman represented the Justice Department on detail as a Staff Assistant for the US House of Representatives Appropriations Committee.  Ms. Wiseman holds a Bachelor of Arts in Government from Smith College and a Master of Public Policy from the Harvard Kennedy School.  

About the Author

Stephen Goldsmith 

Stephen Goldsmith is the Derek Bok Professor of the Practice of Urban Policy and the Director of the Innovations in American Government Program at Harvard's Kennedy School of Government. His latest book is A New City O/S.

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