Defining Flight Risk

Abstract

Our illogical and too-well-traveled paths to pretrial detention have created staggering costs for defendants who spend unnecessary time in pretrial detention and for taxpayers who fund a broken system. These problems remain recalcitrant even as a third generation of reform efforts makes impressive headway. They are likely to remain so until judges, attorneys, legislators, and scholars address a fundamental definitional problem: the collapsing of very different types of behavior that result in failures to appear in court into a single, undifferentiated category of nonappearance risk. That single category muddies critical distinctions that this Article’s new taxonomy of pretrial nonappearance risks clarifies. This taxonomy (i) isolates true flight risk (the risk that a defendant will flee the jurisdiction) from other forms of “local” nonappearance risk and (ii) distinguishes between local nonappearance risks based on persistence, willfulness, amenability to intervention, and cost.

Upon examination, it is clear that flight and nonappearance are not simply interchangeable names for the same concept, nor are they merely different degrees of the same type of risk. In the context of measuring and managing risks, many defendants who merely fail to appear differ in important ways from their fugitive cousins. Precision about these distinctions is constitutionally mandated and statutorily required. It is also essential for current reform efforts that are aimed at identifying less intrusive and lower-cost interventions that can effectively manage the full range of nonappearance and flight risks. These distinctions are not reflected in the pretrial risk-assessment tools that are increasingly being employed across the country. But they should be. A more nuanced understanding of these differences will be a key piece of broader efforts to reduce judicial reliance on pretrial detention and to mitigate the risks posed by defendants on release.

Keywords: bail reform, flight risk, nonappearance risk, risk assessment, judicial decision-making