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Pretrial Release and Fuzzy Math: Correlation Does Not Equal Causation

Friday, December 20, 2013

fuzzy pretrial mathI recently read an article online that discussed how pretrial detention creates more crime.  This is an argument that has been made for decades by proponents of public sector pretrial release.  They say that when defendants are held in jail longer than 24 hours and as little as 2-3 days they are 40% more likely to commit new crimes before their trial.  So spending 2-3 days in jail has the ability to make you a more prolific criminal…or simply put another way, the “cause” is jail time and the “effect” is more criminal activity. 

While on the surface most people who don’t know anything about the criminal justice system might see this as a horrible statistic that needs to be addressed, let me shed some light on this scenario.  What the article and research does not share with readers is that in a large number of jurisdictions across the country, there are laws that require that defendants have their first arraignment within 24 hours.  So, most people have seen a judge within the first 24 hours and a determination has been made by the judge on whether to release that individual or keep them in custody.  Those that are released are typically released on their own recognizance with no financial security.  They have been determined by the judge to be “no risk” to the community and “extremely likely to show up for court.” Those that have been kept in custody have been determined by the judge to be more of a risk to the community and least likely to appear in court.  As you can see, the fact that someone is left in jail for 2-3 days is not the “cause” of why they are more likely to commit a crime.  The fact that they are more likely to commit a crime, as determined by a judge, is why they are being held in custody.

As many within the commercial bail industry know and understand, the purpose of pretrial release is not just to release individuals from jail and hope they come back to court.  The purpose is to “guarantee” their appearance.  Judges know that those individuals that pose the slightest risk to the community and who do not qualify for OR release are best handled by requiring them to financially secure their promise to appear at court.  Why?  Because the judge knows that those individuals carry greater risk and that the best means of controlling that risk is to require financial security with a commercial bail bond.

So to say that the jail time drives the future behavior as opposed to the behavior driving the jail time is a weak if not completely false argument.  It is time for the public sector pretrial release community to stop pointing fingers at the judiciary and the commercial bail industry and stop trying to discredit their value and importance in the criminal justice system.  Instead, the public sector should be reaching out to the private sector commercial bail industry to find ways to leverage each other’s strengths and work collaboratively to increase pretrial effectiveness overall and decrease recidivism.

Written by: Eric Granof

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