Reforming Pretrial Decision-making

Abstract

Pretrial reform efforts have enviable momentum. Reformers have won landmark legal victories dismantling oppressive money bail systems, secured some sweeping state legislative changes, prompted widespread adoption of actuarial risk assessment instruments, attracted significant private foundation investments, and accumulated an impressive array of other victories. These ambitious initiatives aim to shrink the country’s swollen jail populations but they may do too little to change fundamental aspects of judicial decision-making that have been a persistent source of pretrial dysfunction.

This Article evaluates how effective current reforms will be in reshaping judicial behavior. To provide some background, Part II analyzes the decision-making processes that have historically led judges to rely too heavily on pretrial detention and overly restrictive release and outlines the costs of these flawed decisions. Pretrial reform efforts include a range of different strategies and Part III evaluates how well these existing approaches redefine pretrial decision-making. Part IV proposes improvements to both the definition and the measurement of pretrial risks. Part V calls for greater emphasis on judges’ obligations to mitigate harm and promote successful pretrial release.

Keywords: pretrial reform, judicial decision-making, criminal justice reform