Review of Pretrial Risk Assessment and Factors Predicting Pretrial Release Failure
One of the most important areas of prison growth is related to the pretrial population, those persons who are charged with the commission of certain offences and are awaiting commencement or completion of their case. While some of these individuals are released during an initial hearing, others are detained for the duration of their trial. A recent innovation in this area has been the use of pretrial risk assessments (PTRAs), instruments which objectively assess a defendant's risk of failing to appear or to commit a new crime prior to their trial date. Research suggest that PTRAs have validity in decreasing the amount of pretrial defendants housed in prisons or jails, may help to honour the presumption of innocence through the expanded release of low-risk pretrial defendants, and may increase efficiencies in the criminal justice system.
By John-Etienne Myburgh, CarolynCamman & J. Stephen WormithPretrial release is crucial in reducing unnecessary use of secure detention and to ensure that defendants will appear in court when summoned. There are many similarities in the pretrial release process between Canada and the United States, although in the US there is a much greater reliance on the use of financial bonds as well as widespread use of PTRAs which are generally administered through dedicated pretrial service agencies (PSAs). In both countries, individuals who are awaiting trial and sentencing may be released to the community rather than detained (remanded) if the court is satisfied that they are not a significant risk to fail to return for their scheduled court appearance or commit another crime. This release may take various forms and may or may not include supervision, release conditions, or financial commitments.
Pretrial Risk Assessment
The goal of PTRAs is to help judicial officers make informed decisions about who to release and who to detain. It has been suggested that the potential benefits of improved bail decisions include increased public safety, protecting defendants' presumption of innocence, lead to a more efficient court and jail system, will improve the use of criminal justice and community resources, and will reduce disparities in decision-making through using objective criteria to assess risk. The use of PTRAs has also been linked to a decrease in the detention population in the United States. The rationales for the use of PTRAs include:
Shift toward objective decision-making: The move towards using PTRAs is consistent with the general move towards utilizing actuarial tools, as opposed to clinical judgment, in assessing the risk level of a defendant, and toward the use of evidence-based practices in general.
More favourable sentencing outcomes: It has been demonstrated that receiving pretrial release may result in more positive sentencing outcomes and it is suggested that this is because they have more access to their attorneys and are less likely to be viewed unfavourably by juries.
Financial pressures on the justice system and defendants: The costs associated with incarceration are high both for the criminal justice system and the defendants themselves. To the extent that PTRAs can reduce pretrial detention and the reliance on financial bonds (in the US), this can result in substantial savings.
Conclusion
The use of pretrial risk assessments (PTRAs) has expanded dramatically in the United States as the rate of pretrial detention has also increased. The increased use of PTRAs has been related to several factors, including a move towards more objective decision-making regarding pretrial outcomes, as well as a movement away from imposing financial bonds on pretrial defendants. It has also been found that pretrial release is related to significantly more positive outcomes for pretrial defendants. Furthermore, the use of PTRAs is linked to decreased jail usage, increased court efficiency, and increased levels of pretrial release, especially for low-risk defendants. PTRAs have been found that are normed for specific geographical areas—cities, counties or judicial districts, states, and nationally—as well as for special populations, such as young offenders. Overall risk factors, whether found empirically or statutorily, suggest that certain common factors, especially criminal history factors, are highly predictive of pretrial failure. Following this review of the pretrial risk assessment literature, a number of recommendations have been identified for future research in this area, for the administration of justice, and for the Saskatchewan Ministry of Justice in particular.