(Photo: Getty Images)
In its recently released “Roadmap for Pretrial Advancement,” APPR lays the groundwork for improving the pretrial legal system.
By Matt Keyser
National Partnership for Pretrial Justice
April 14, 2022
Decisions made at the pretrial stage can have lasting — and damaging — impacts to people involved in the criminal justice system.
A growing body of research has revealed the harms of jailing people before they’ve been convicted of a crime and how wealth-based detention disproportionally impacts people of color and those economically disadvantaged.
That’s why Advancing Pretrial Policy and Research, or APPR, is fighting to create more fair and effective pretrial practices across the U.S. [APPR is an NPPJ partner.]
We spoke with APPR about flaws in the nation’s pretrial systems and their work “building a national network and community of people committed to achieving pretrial justice for all.”
This interview has been edited for length and clarity.
NPPJ: What is APPR?
Matthew Alsdorf, co-director of APPR: We are a national initiative supported by Arnold Ventures that seeks to achieve fair, just, effective pretrial practices, every day, nationwide. We focus on enhancing the capacity of the criminal legal system and community stakeholders to implement equitable pretrial justice and increasing the number of state and local jurisdictions engaged in data-driven and research-informed pretrial practices.
This involves a wide variety of activities for our team. We provide technical assistance to dozens of jurisdictions across the country that is grounded in collaboration, the law, and a commitment to increasing equity.
We offer trainings at no cost that cover the full breadth of key pretrial topics. And we provide resources and networking opportunities for people working to improve their pretrial systems. We also research the impact of pretrial improvements.
The Center for Effective Public Policy leads all implementation and technical assistance activities for APPR.
NPPJ: Why is there such a need to improve the nation’s pretrial systems?
Alison Shames, co-director of APPR: Pretrial is the front door of the criminal legal system, and decisions made in the early stages of a criminal case have major impacts on everything that follows. But in most of the country the pretrial system is deeply flawed, resulting in the unnecessary detention of tens of thousands of people. Nearly three-quarters of people held in jail are there before they have been convicted of any crime, totalling roughly half a million legally innocent people behind bars on any given day.
Many pretrial practices contribute to these results. For instance: law enforcement routinely arrest and bring people into custody rather than using citations for lower level offenses. Judges use financial release conditions, usually known as money bonds, as the default release condition, which negatively impacts those with little economic means. People are not represented by defense counsel at these critical hearings, despite their liberty being at stake.
Much like the rest of the criminal legal system, the pretrial system suffers from systemic racism, with Black, Latino, Indigenous, and other people of color disproportionately arrested and booked, subjected to higher financial conditions of release, and detained more frequently. These practices result in many people who could safely remain free ending up in jail, often for long periods. And they do not enhance — and frequently undermine — community safety and well-being.
NPPJ: In your guiding principles, you note that “pretrial liberty is the norm and detention is the carefully limited exception—for everyone.” But that’s not the case in every jurisdiction in America. Why is that?
MA: The notion that pretrial liberty should be the “norm” and detention the “carefully limited exception” actually comes directly from the U.S. Supreme Court in a 1987 case called U.S. v. Salerno. The idea is that, before trial, people are presumed innocent and, therefore, can only be held in jail in very rare circumstances. The Court has said absent a right to release the presumption of innocence “would lose its meaning.”
But you’re right that that is not the way it works in many jurisdictions. There are a few reasons for that, but the main one is how we use financial conditions of release. Ideally, judicial officers would intentionally decide about the answer to this question: Should a person be released or should they be detained before trial? But that’s frequently not what happens. Instead, our system defaults to assigning money bonds to the vast majority of people coming through the system. And that means someone’s access to money, rather than a judge’s intentional decision, is what determines whether they remain in the community or behind bars before trial. That’s how we end up with too many people — and the wrong people — in jail.
Judicial officers are also like the general public in that there’s a widespread assumption that people who are arrested and booked into jail are likely to violate the law or fail to show up to court if they’re released. But the data shows that’s not true. Most people succeed on pretrial release. They remain law-abiding and appear at their court hearings. That’s why there’s an increasing focus among pretrial professionals on providing supportive services to people who are released, rather than simply monitoring their compliance with restrictive conditions.
NPPJ: So how do you get from where we are today to where we want to be? The pretrial legal system touches on many aspects of the criminal legal system — policing, jails, prosecution, courts, defense. So I imagine it’s complicated to create systemic change?
AS: Yes, it is complicated, as any lasting change is, particularly when it involves multiple independent agencies and requires meaningful input from the community. But it can be done. That’s what more and more jurisdictions are recognizing, which is why we have reached thousands of people with our technical assistance, training, and community since we began this project just three years ago.
We have found that jurisdictions are most successful when a few things are in place. First, all the relevant system and community actors need to come together and collaborate through a formal committee or team. Collaboration is critical because, for pretrial justice goals to be achieved, law enforcement, prosecution, defense, courts, and others who impact or are impacted by the system — for instance, those charged with crimes, crime victims, and their families — must work together effectively.
Second, the committee has to be led by an influential and committed champion, such as a presiding judge or district attorney. The committee also needs senior staff who can help guide the process, organize meetings, and bring essential information to the team.
Finally, jurisdictions benefit from having research and policy guidance to serve as a roadmap for the process of their improvement.
APPR has just released a Roadmap for Pretrial Advancement, which builds on groundbreaking work done by the National Institute of Corrections and others, and sets forth more than a dozen actionable recommendations for improving a pretrial legal system. These recommendations cover both what should be done and how those changes can most effectively be made. We hope this resource guides teams as they examine their pretrial systems.
NPPJ: So much data and research has shown the harms of pretrial detention — harms that fall disproportionately on BIPOC populations and the economically disadvantaged. What’s your perspective on the importance of equality in the pretrial system?
MA: You’re absolutely right. Institutional racism permeates our society, including the criminal legal system. We consider addressing racial equity to be a cornerstone of our project. We have a Racial Equity Community Engagement Committee composed of experts who provide technical assistance to our sites, conduct training for the field, and develop curricula and resources.
We recently facilitated a series of conversations on racial equity, and we will soon be offering a series of workshops on community engagement. Hundreds of people in the field are participating in these sessions. We work in partnership with the W. Haywood Burns Institute and conduct disparity analyses for some of the sites we work with. As the work continues, we will share the results with the field, and provide models for others to replicate.
NPPJ: In the past few years, we have seen opponents of bail reform argue that efforts to improve pretrial systems are the cause of increased crime. We know the data doesn’t bear this out and that these arguments depend on inflammatory anecdotes and stoking fear. What are the best ways to counteract these claims and build support for pretrial improvement?
AS: We must first acknowledge that we all want safe communities and the increase in crime is real. And while crime is still vastly lower in most jurisdictions than it was decades ago, violent crime has been on the rise recently. People aren’t wrong to react to that.
But we need to emphasize what we know from the data and evidence: Pretrial improvements are not the cause of the increase in violent crimes and, in fact, many of the changes make us safer.
The recent increases in crime have been seen across jurisdictions, regardless of their pretrial practices, so it is inaccurate to blame this trend on bail reform when the same increases have been seen in jurisdictions that have kept their practices exactly the same.
We also know that unnecessary incarceration leads to higher rates of rearrest. So, improving pretrial legal systems actually enhances community well-being and safety — and it can build trust between communities and legal system stakeholders in ways that will pay dividends down the road.
Pretrial advancement is a story of success, and it’s one we hope and expect will expand to many more jurisdictions in the coming months and years.
NPPJ: How can people get involved with APPR?
MA: We are dedicated to building a national network and community of people committed to achieving pretrial justice for all. And when we talk about people, we mean people in jurisdictions working in pretrial systems, researchers studying the pretrial phase, community members impacted by the system, and journalists who report on pretrial issues.
Our website, advancingpretrial.org, is filled with relevant information and publications. When you sign up with APPR through the website, you receive our monthly newsletter that announces new events, free trainings, and current resources.
Importantly, after signing up, you gain access to the APPR Community, an online forum for people to exchange ideas, share successes, and ask questions.
We hope people join us in working to achieve pretrial justice for all.