Disentangling Flight Risk from Dangerousness
62 Pages Posted: 14 Jan 2017
Date Written: November 2016
There is a growing national consensus about the urgent need to shrink the population of pretrial detainees and to fix our broken money bail system. Even as scholars and reformers are showing renewed interest in pretrial detention and bail, however, they have neglected a fundamental pretrial problem: the conflation (by judges and in statutes) of flight risk and danger. Reformers have offered up an array of proposals and increasingly sophisticated risk assessment tools that promise to improve judicial decision-making, but many of these tools merge flight risk and danger in ways that reinforce problematic legislative and judicial practices.
This Article identifies the legal and practical reasons that judges must evaluate flight risk independently of danger. Federal and state constitutions and statutes include detention and bail provisions that require judges to make separate determinations of flight risk and dangerousness. There are also compelling policy arguments for separating flight from danger. First, combining risks may cause judges to overestimate both kinds of risks. Second, forcing separate analyses of pretrial risks may provide judges with much-needed political cover (alleviating pressure to detain). In addition, isolating the two types of risks offers an opportunity to improve judicial accountability and system legitimacy. Finally, the conditions of release that judges employ to mitigate flight risk are different from those that are used to manage danger. Disentangling flight risk from dangerousness will be a critical piece of efforts to improve pretrial decision-making and reduce unnecessary pretrial detention.
Keywords: Bail, Flight Risk, Pretrial Detention, Criminal Procedure, Eighth Amendment
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