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Texas Policy Foundation Center for Effective Justice--Open Roads and Overflowing Jails--Addressing High Rates of Rural Pretrial Incarceration, May 2018

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OPEN ROADS AND
OVERFLOWING JAILS:
Addressing High Rates
of Rural Pretrial
Incarceration
by Marc Levin and Michael Haugen

May 2018

May 2018
by
Marc Levin
Michael Haugen
Center for Effective Justice
Texas Public Policy Foundation

Table of Contents
Executive Summary......................................................................3
Introduction......................................................................................4
Historical, Legal, and Constitutional Framework for
Pretrial Justice.............................................................................5
Research Findings on Extent and Sources of Rural
Jail Growth....................................................................................8
Growth in Rural Jail Populations: By the Numbers......8
Investigating Potential Causes of Higher Rural
Pretrial Populations......................................................................9
Lack of Focus on the Presumption of Pretrial
Release Without Conditions...............................................9
Potential Economic Incentives to Grow Jails........10
The Opioid Crisis....................................................................10
Lagging Socioeconomic Performance in Rural
Areas..............................................................................................12
Evaluating Forms of Pretrial Release...............................13
A Closer Look at Texas’ Counties (inset)........................13
Consequences of Pretrial Detention..............................18
Solutions for Safely Reducing Rural Pretrial
Incarceration..................................................................................20
Reduce Number of Offenses Carrying the
Potential for Arrest and Jail Time..................................20
Expand Use of Police Diversion.....................................20
Create Presumption of Recognizance Release....22
Promptly Administer Risk Assessment Upon
Intake.............................................................................................22
Revise State Bail Laws, Including the Option of
Preventive Detention..........................................................23
Exercise Prosecutorial and Judicial Discretion
Regarding Use of Financial Conditions and
Pretrial Diversion Toward Mental Health and
Drug Treatment Alternatives..........................................24
Curtail Use of Bail Schedules and Adjust Bail
Amounts When Financial Release Is Used, Based
on the Presumption of Release.....................................25
Explore Use of Pretrial Services and Supervision,
Including Regional and Nonprofit Options,
for Defendants After Due Process Hearing
Demonstrates Recognizance Release Without
Conditions is Inadequate to Address Flight and
Public Safety Risk....................................................................26
Expedite Provision of Counsel to Indigent
Defendants................................................................................27
Promote Family Involvement.........................................29
Match New Technologies with Defendants..........29
Conclusion.....................................................................................29
References......................................................................................31

May 2018	

OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

OPEN ROADS AND OVERFLOWING JAILS:
Addressing High Rates of Rural Pretrial
Incarceration
by Marc Levin and Michael Haugen

Executive Summary

Key Points

The axiom that a person is considered innocent of a criminal act until he or she
has been proven guilty is a bedrock principle of the American criminal justice
system. Yet in many jurisdictions, it appears to have been forgotten. The pretrial
population of defendants has significantly increased—particularly in rural areas
of the country. Jails in smaller jurisdictions are responsible for an outsized share
of jail population growth. Indeed, from 1970 to 2014, jail populations grew by
almost sevenfold in small counties but only threefold in large counties.

•	 Both the Constitution and Supreme Court precedent demand
that pretrial liberty be the norm,
and that detention is to be a “carefully limited exception.” In practice,
this has not been the case.

This paper explores why this growth may have occurred and makes numerous
recommendations to reduce pretrial populations, particularly in rural America.
The first place to start is by reducing the number of offenses carrying the potential for arrest and jail time—the overcriminalization of our society must be reversed. The next step is to restore our historical commitment to individual liberty
and the presumption of innocence by following these five guiding principles of
pretrial justice policy:

•	 While prison populations have
fallen recently, the nation’s
jail populations have steadily
increased—particularly pretrial
detainees. Rural areas, not urbanized ones, are responsible for a
disproportionate amount of this
growth.

•	

There should be a presumption of pretrial release without conditions or
cash bond, grounded in the American maxim that people are innocent until
proven guilty.

•	

Conditions of release, if any, should be the least restrictive to ensure public
safety and appearance at trial.

•	

Courts—after due process—should have the authority to deny bail in the
most serious cases involving highly dangerous defendants after determining
that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably
protect public safety and ensure re-appearance.

•	

The burden should be on the state to prove the need for conditions of release
or denial of bond in an adversarial proceeding where the accused is present.

•	

Individual judicial consideration should be required for each accused.

•	 Potential causes for increasing rural pretrial jail populations include
a lack of presumption of pretrial
release, economic incentives to
build unnecessary jail capacity,
and rising drug abuse.
•	 Possible solutions for rising pretrial
populations include reducing
jailable offenses, expanding police
diversion, use of validated risk-assessments at intake, and revising
state bail laws.

For a host of reasons, ranging from limited resources to dispersed populations,
addressing pretrial incarceration in rural areas is a particularly complex undertaking. Also, there are many moving parts to implementing changes in a deliberate manner that produce sustainable results without unintended consequences.
Ultimately, as rural communities across the country take many different paths
to addressing the meteoric rise in rural pretrial incarceration over the last few
decades, they must not lose sight of the destination: a constitutional system that
produces greater public safety with less collateral damage.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

Introduction

“In our society, liberty is the norm, and detention prior to
trial ... is the carefully limited exception.” (U.S. v. Salerno)
Although it has never been explicitly codified in statute nor
immortalized in our Constitution, the axiom that a person
is considered innocent of a criminal act until he or she has
been proven guilty is a bedrock principle of the American
criminal justice system. It was on this basis that former
United States Supreme Court Chief Justice William Rehnquist penned the above philosophical truism—in a majority
opinion upholding the constitutionality of the Bail Reform
Act of 1984, which permits courts to detain potentially dangerous criminal defendants prior to trial. This was part of a
raft of state and federal laws created in the 1970s and 1980s
that added risk to public safety to the traditional role of bail
in simply ensuring re-appearance, but prior to such statutes
explicitly allowing this “it was widely acknowledged that
judges deliberately set unaffordable bail amounts on pretextual flight risk grounds so that dangerous individuals would
be detained until trial” (Gouldin, 848).1 While recognizing
that there may exist situations in which pretrial detention is
necessary to prevent additional lawbreaking, or otherwise
prevent fleet-footed individuals from absconding from justice, Rehnquist nonetheless erred on the side of restraining
government’s deprivations upon individual liberty. Pretrial
detention is to be a “carefully limited” practice. This applies
both to the frequency with which it is used, the due process
that is afforded, and the duration of the detention, which
also raises further constitutional issues involving the right
to a speedy trial.
This paper addresses the implications of the national growth
in pretrial incarceration over the last few decades, particularly the recent growth in pretrial incarceration in rural areas even while it has started to decline in urban areas. Since
the 1970s, jurisdictions have experienced general growth
in their corrections systems—a trend that has slowed and
started reversing only in the last few years. Increased prison
and jail populations buffet local and state budgets and impose an attendant burden on taxpayers.
However, tightening local and state coffers are not the only
impetus for reform. There has been growing realization
among stakeholders that simple warehousing of individuals
1	 Footnote from Gouldin: “Citing Clara Kalhous & John Meringolo in “Bail
Pending Trial: Changing Interpretations of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspectives,” 32 PACE L. REV. 800, 813
(2012) (explaining that between 1966 and 1984, “federal courts were taking
matters into their own hands, effectively denying bail in cases where they
deemed defendants to be dangerous by setting inordinately high bail, albeit
on stated grounds of risk of flight.”); Goldkamp & Vîlcicã, supra note 16, at 128
described the historical problem of the “sub rosa use of preventive detention
through cash bail”).”

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May 2018

does not necessarily yield concomitant returns on public safety. For instance, detaining low- to moderate-risk
defendants before trial—who, by definition, are presumed
innocent—has been shown to increase the likelihood of
new criminal activity (Lowenkamp et al. 2013b, 4). Furthermore, various studies described herein have been published
in recent years demonstrating that pretrial detention, even
for short periods, contributes to loss of employment, greater
financial difficulties, residential instability, and a diminished
ability to provide for dependent children.
Incarceration, whether in prison or jail—while obviously
sometimes necessary—has far-reaching social and economic impacts. As a result, policymakers have begun adopting
new policies aimed at reducing prison and jail populations
while enhancing public safety (Right on Crime). While
falling prison populations—which are coincident with falling, historically low crime rates—spell the success of these
efforts, the nation’s jail populations have not followed suit.
Instead, these populations have generally gone in the other
direction. Not only have pretrial jail populations gone up
commensurately, they now form a disproportionate segment of those held in local jails.
Driving much of this increase in local jail populations—
whether pretrial detainees or otherwise—have not been
those located in large cities or even their suburbs, as might
be expected. Rather, jails in smaller jurisdictions are responsible for an outsized share of jail population growth. Indeed,
from 1970 to 2014, jail populations grew by almost sevenfold in small counties but only threefold in large counties2
(Subramanian et al., 8). This presents local and state policymakers with challenges that larger jurisdictions generally do
not encounter, given their size and greater pool of resources.
After reviewing the legal and constitutional framework
for pretrial policy, we’ll discuss several putative causes for
this finding. Although reasons for this disproportionate
growth arise from different factors—some of them likely to
be unique, or of greater import, to different locales—chief
among them may be:
•	
•	

•	

A lack of capacity in rural areas to rapidly process cases;
Inability of many defendants to afford high-money
bail amounts, reluctance of courts to use recognizance
release, and inaccessibility of alternatives to address defendants with substance abuse, mental health, or other
issues;
Economic incentives to build more jail capacity than is
immediately necessary;

2	
In Subramanian et al. (8), the authors define “small” counties as those with
fewer than 250,000 residents and “large” counties as those containing more
than a million.

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•	
•	

OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

The opioid crisis and other drug problems, and;
Lagging socioeconomic trends in rural areas.

We will then explore the consequences of high rates of
pretrial incarceration, including in rural areas, and identify
possible solutions for achieving better outcomes for public
safety, taxpayers, and defendants’ constitutional rights.
For background, many forms of pretrial release will be
discussed and some jurisdictions use more than one in the
same case:
•	
•	

•	

•	

•	

Recognizance release – The defendant simply promises
to reappear in court.
Unsecured financial bond – The defendant or someone
on their behalf promises to pay a certain amount if the
defendant does not reappear, but no funds are posted
upfront. An example is the I-bond in Illinois where
defendants sign indicating that they will appear, and if
they do not, they may be held in contempt by the court
and held personally responsible for a specified amount.
While evidence discussed later in this paper indicates
many more defendants could be safely released through
recognizance or unsecured bonds—and the American
Bar Association has recommended this approach—it
can require judicial courage since in the case of failure
there is not a bondsman or pretrial supervision agency
to blame (American Bar Association Resolution).
Cash deposit bond /collateral – The defendant posts
money or property (title to a car, jewelry, etc.) to the
court/county that is returned only if the defendant
reappears. Typically, if the defendant posts money, it is
10 percent of the total bond which the county returns if
the defendant reappears.
Commercial bail – A bail bondsman posts the entire
amount set by the court and the defendant, often
through a family member or friend, typically agrees to
pay the bondsman 10 percent. The defendant is theoretically liable for the remainder if they abscond, but
if they are re-arrested and jailed for an alleged new
offense the bondsman’s liability is typically discharged.
The bondsman may also take collateral and/or offer the
ability to pay some portion of the premium through
installments.
Pretrial supervision – The defendant reports to the court
in some manner, which could be in person, by electronic monitoring, and/or through an application or
text message. In some jurisdictions, pretrial supervision
can encompass can include non-intrusive forms such
as simple text reminders of court dates to treatment
requirements, drug testing, and restrictions on the right
to travel. It is often accompanied by a personal bond in

a nominal amount such as $25, but is also used by some
jurisdictions in addition to financial forms of release. A
pretrial services agency or division of a court or probation department typically encompasses screening of
defendants, typically using a validated risk assessment
instrument—but may also refer defendants to treatment
providers, temporary housing, and other services in the
community.
In sum, the findings in this paper indicate that pretrial detention is excessive in rural areas but that changes to current
policies and practices can better protect constitutional principles, improve public safety outcomes, and reduce overall
costs to taxpayers through lower jail costs, although some
of these savings will be needed to more efficiently process
cases and implement effective alternatives.

Historical, Legal, and Constitutional Framework for Pretrial Justice

Pretrial incarceration represents a deprivation of liberty
that should be the exception, not the norm. The right to bail
dates back to the Magna Carta in 1215 and the Statute of
Westminster in 1275 (Hegreness, 917). It is encompassed in
the Eighth Amendment of the U.S. Constitution and similar
provisions in the Texas Constitution and more than 80 percent of all state constitutions that prohibit the use of “excessive bail” (Hegreness, 935). The Oxford Dictionary (2018)
defines bail as “the temporary release of an accused person
awaiting trial, sometimes on condition that a sum of money
is lodged to guarantee their appearance in court.” Financial
forms of bail, although not necessarily commercial bail,
have been used for centuries in America, and before that
dating back to medieval England. Bail became more complex after the Norman conquest of England in 1066, though
it was not until 1898 that the commercial bail bond business
first came to this country (Schnacke et al. 2010, 2, 7).3
In its amicus brief in O’Donnell v. Harris County, the Cato
Institute explains that at the time the U.S. Constitution
was written—and in our first century as a nation—it was
understood that money bail must either be attainable for the
specific defendant or denied (Shapiro and Watkins,10-12):
3	
The earliest forms of bail in medieval England were designed to curtail
blood feuds, and, at that time, a value was placed on each person based on
social rank (Schnacke et al. 2010, 2). The cases involved two private parties—so
they would be civil in our modern nomenclature. The punishment upon conviction would be a fine paid to the injured family. Therefore, the bond amount was
the same as the punishment amount, and, in fact, all defendants were released
in such cases. Thus, there was not a question as to what constituted excessive
bail. The bond was unsecured, so the personal surety may have posted an item
of nominal value such as a stick, but would be liable to the accuser in the whole
amount if the accused did not return to court. Practices such as secured bonds
and a court setting an amount tied to other factors would come later following
the dawn of the Norman period in 1066.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

It is worth examining an example of how the right
to bail applied even for the most serious non-capital
crimes during the Founding Era by considering United
States v. Lawrence, 4 Cranch C. C. 518 (1835). In this
case, Richard Lawrence attempted to assassinate President Andrew Jackson, failing only because two properly
loaded pistols both misfired. Because no physical harm
occurred, the laws of the time considered this act to be
the common law crime of assault with intent to murder
(which did not carry the death penalty). Any crime that
was not a capital crime—even one as serious as this—
was bailable and the Constitution was understood to
prohibit bail more than the defendant could provide.
Id. (“The chief judge then said … that the constitution forbade him to require excessive bail; and that to
require larger bail than the prisoner could give would
be to require excessive bail, and to deny bail in a case
clearly bailable by law.”). The judge initially suggested a
bail of $1000. The government recognized the right to
bail here, but suggested that the amount be increased to
$1500 on the possibility that the defendant had friends
who could assist in posting bail—a request to which the
judge agreed. Id.
The understanding in Lawrence, that bail cannot be
required of indigent defendants beyond what they could
reasonably acquire, was broadly accepted for over 100
years. Joseph Chitty, A Practical Treatise on the Criminal Law 130-31 (1832) (“The rule is, where the offense
is prima facie great, to require good bail; moderation,
nevertheless, is to be observed, and such bail only is to
be required as the party is able to procure; for otherwise the allowance of bail would be a mere colour for
imprisoning the party on the charge.”); United States v.
Brawner, 7 F. 86, 89 (W.D. Tenn. 1881) (citing Lawrence
for the proposition that “to require larger bail than the
prisoner could give would be to require excessive bail,
and to deny bail in a case clearly bailable by law”); William Smithers Church, A Treatise of the Writ of Habeas
Corpus 532, § 397 (1886) (“To require larger bail than
the prisoner can give is to require excessive bail, and to
deny bail in a case clearly bailable by law.”); George Arthur Malcolm, The Constitutional Law of the Philippine
Islands Together with Studies in the Field of Comparative Constitutional Law 497 (1920) (“It is substantially a
denial of bail, and a violation of constitutional guaranties against excessive bail, to require a larger sum than,
from the circumstances, the prisoner can be expected to
give.”)
William Blackstone pointed out that pretrial release was
considered so important in colonial America that it was a
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May 2018

crime on the part of a judge if he detained a bailable defendant (Blackstone, Schnacke 2017, 8). This belief co-existed
with the use of financial conditions, as a Virginia Colony
law from 1645 held sheriffs liable “to pay the award of the
court” if they “shall neglect to take sufficient bayle of the
party arrested, or otherwise consent to, or because of ” an
accused man’s escape (Duker, 27). Additionally, Congress
declared in the Judiciary Act of 1789 that all defendants
in non-capital cases were entitled to bail (Judiciary Act of
1789).
The corrections system also looked very different back then.
First, in colonial America—and even immediately following the Revolution—there were few jails, and punishments
often consisted of ostracizing the offender or even administering physical pain (Meskell, 841). Many prosecutions were
handled by privately hired prosecutors, and judges were often mobile, traveling from one hamlet to another (Schnacke
et al. 2010, 6).
In addition to cash bail, up until the mid to late 19th
century, another common approach in the U.S. was the
use of personal sureties and unsecured bonds (Schnacke
2014). This meant typically that either the defendant or an
upstanding member of the community would not post any
funds or property upfront, but would agree to pay if the defendant did not show up. So, even if the amounts were significant in some cases, it did not prevent release (Schnacke
2017, 7). Those making this promise were prohibited from
being indemnified by the defendant and could not profit, as
it was seen as a conflict of interest since, if the surety could
easily collect the whole amount from the defendant, there
would be no incentive for the surety to ensure the defendant would appear (Schnacke 2014, 40). Due to population
growth and urbanization where people and communities
became less connected, it became harder to find personal
sureties, so that led to the advent of commercial bail around
the turn of the century (Schnacke 2014, 40). While bail in
the U.S. developed out of English common law and practice,
Professor Devine explains how Great Britain, India, and
Australia diverged from the U.S. toward a system that does
not involve money, and indeed only the Philippines and the
U.S. currently use commercial bail (Devine).
Turning to today’s realities, from 1990 to 2009, the proportion of felony defendants released on their own recognizance with no conditions fell from 26 percent to 14 percent
(Reaves, 38). During this same period, the average bail
amount went from $25,400 to $55,400, though the median
bail amount has remained at approximately $10,000. By
2009, almost 70 percent of felony defendants had been given
bail amounts greater than $5,000 (Reaves, 18).
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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

For example, in California, the average bail schedule in
12 counties is estimated to have increased 22 percent to
$32,000 for some of the most frequently committed felony
offenses even after adjusting for inflation from 2002 to 2012
(Tafoya, 9). Nationally, five out of six people detained before
trial on a felony charge are held on money bail (Cohen and
Reaves, 2). In one study, even when bail was set at $5,000 or
less, it was found that only about half of defendants could
meet it (Dobbie et al. 2016, 1).
Of course, in addition to policies and practices relating to
bail, there are many other factors that can influence rates of
pretrial detention, including the number of arrests—which
rose from 1980 to 1997, but has been in decline since then
(Snyder, 7). For instance, we must take into account that the
national percent of state court felony defendants held on
bail has actually declined by about 3 percent (Cohen and
Reaves, 2). Another possible reason for the increase in pretrial detainees is the simple fact that more people are being
arrested. Total arrests of adults in the U.S. increased 22.9
percent from 1980 to 2014 (BJS 2018). The rural pretrial
incarceration rate has continued to dramatically increase
since 1997, so while this suggests arrest trends are not the
primary driver, it does not mean that in certain jurisdictions arrests may not have fluctuated differently than the
national figures and therefore continued to contribute to
pretrial detention growth even since 1997.
The U.S. Constitution, as well as state constitutions, recognize negative rights that implicate freedom from overreaching government, such as a person’s liberty interest in being
adjudicated before being punished. These founding documents generally do not recognize “positive rights,” such as
being able to afford products or services, which would inevitably come at another’s expense. Accordingly, while there
are no constitutional infirmities associated with one person
in a store having more purchasing power than another,
there is an equal protection problem if pretrial detention is
imposed on one otherwise similarly situated defendant but
not the other. In that vein, the U.S. Court of Appeals for the
Fifth Circuit has ruled that “imprisonment solely because of
indigent status is invidious discrimination and not constitutionally permissible” (Pugh v. Rainwater).
Regardless of the methods used for pretrial release, federal
courts have also held that, in addition to the equal protection implications, pretrial incarceration raises due process concerns that require expeditious and individualized
consideration of each defendant. On this point, U.S. Chief
Justice Robert Jackson wrote in the seminal Stack v. Boyle
case (1952): “Bail is not a device for keeping persons in jail
upon mere accusation until it is found convenient to give

them a trial” (Stack v. Boyle). More recently, the U.S. Court
of Appeals for the Fifth Circuit explained:
Yet, as noted, state law forbids the setting of bail an “instrument of oppression.” Thus, magistrates may not impose a secured bail solely for the purpose of detaining
the accused. And, when the accused is indigent, setting
a secured bail will, in most cases, have the same effect
as a detention order. Accordingly, such decisions must
reflect a careful weighing of the individualized factors
set forth by both the state Code of Criminal Procedure
and Local Rules (O’Donnell v. Harris County 2018a, 13).
Further, the Fifth Circuit court ruling established a requirement for a bail hearing within 48 hours of admission into
jail (O’Donnell v. Harris 2018a, 16).
When it comes to pursuing equality as a goal, traditionally conservatives view equal opportunity as a touchstone
while those on the left seek equal outcomes. In the pretrial
context, the quest for equal opportunity simply means that
each defendant has the opportunity for the same objective
review that focuses on legitimate government goals that are
sufficiently compelling to justify this deprivation of liberty
for those not yet convicted—ensuring defendants answer
for their charges and avoiding harm to the public. While
constitutional rights should not be at the whim of public
opinion, it is not surprising that survey research indicates
more than 8 in 10 Utahans, in a 2018 poll, believe pretrial
decisions should be based on an objective analysis of public
safety and flight risk, not ability to pay (Pfeiffer,2).
Finally, there are legal and constitutional considerations that
relate not just to the initial question of detention, but also
how long someone should be detained without a resolution
of their case. The Speedy Trial Clause of the Sixth Amendment to the United States Constitution provides that “in all
criminal prosecutions, the accused shall enjoy the right to a
speedy trial,” and some state constitutions have similar provisions. Unfortunately, there is no nationally published data
on length of stay for pretrial defendants, but news reports
suggest that it is not uncommon for some defendants to
wait long periods prior to trial. For example, in April 2018
the Louisiana Sheriffs’ Association said that some 2,181
pretrial or pre-sentencing defendants, about 15 percent
of the current parish jail population, have been locked up
for at least a year, with 674 of them having been there at
least two years. (O’Donoghue). Similarly, in Cook County,
Illinois (Chicago), more than 1,000 defendants had been
awaiting trial for at least two years, according to the Sheriff ’s
office (Woodman). In Mississippi, it was reported in early
2018 that 600 pretrial defendants had been in jail at least a

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

year (Amy). Each of these cases can be viewed in an online
database (MacArthur Justice Center).
In light of the legal and constitutional framework and our
historical commitment to limited government and individual liberty, five guiding principles of pretrial justice policy
emerge:
•	

There should be a presumption of pretrial release without conditions or cash bond, grounded in the American
maxim that people are innocent until proven guilty.

•	

Conditions of release, if any, should be the least restrictive to ensure public safety and appearance at trial.

•	

Courts—after due process—should have the authority
to deny bail in the most serious cases involving highly
dangerous defendants after determining that a compelling government public safety interest exists and there
are no possible conditions under which the defendant
could be released that would reasonably protect public
safety and ensure re-appearance.

•	

The burden should be on the state to prove the need for
conditions of release or denial of bond in an adversarial
proceeding where the accused is present.

•	

Individual judicial consideration should be required for
each accused.

The findings of this paper demonstrate that the frequent
failure to be guided by these principles and considerations
has contributed to a rise in jail populations over the last few
decades that is most pronounced in rural areas.
Even as jurisdictions increasingly and rightly focus on
identifying all defendants who can safely be released, they
must also take into account the liberty interest of these individuals once they are out of jail. While any form of pretrial
release is a lesser restriction on liberty, all conditions of
release, whether it is a form of electronic monitoring or a
treatment requirement, must be directly connected to the
risk factors specific to that defendant for failure to appear
and re-arrest. As a threshold question, these restrictions on
liberty should also be based on more than what is sufficient for arrest: a police officer’s belief that there is probable
cause. The prosecutor and judge have an obligation to review the probable cause affidavit and the evidence available
at the time so that they are confident the allegations, if true,
constitute an offense.
Whether defendants are released on pretrial supervision,
commercial bail, and/or other means, courts have sometimes imposed blanket conditions on all defendants charged
with certain offenses. This has led to a line of federal court
cases in which defendants have successfully challenged
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May 2018

policies such as a provision of the federal Adam Walsh Act
that required electronic monitoring of all pretrial defendants charged with sex offenses (U.S. v. Arzberger). The
same analysis applies to Second Amendment rights, especially following the Heller decision (District of Columbia v.
Heller), which means that, rather than imposing cookie­
cutter conditions for certain types of cases, courts must
make an individualized determination that the deprivation
of liberty imposed is necessary for public safety.4

Research Findings on Extent and Sources of
Rural Jail Growth
Growth in Rural Jail Populations: By the Numbers

Before putting recent jail population growth into perspective—both in aggregate and among pretrial detainees—we
must first define what constitutes “rural” versus “urban”
and “suburban” counties. For this paper, we rely upon the
definition derived by the Vera Institute for Justice in their
examination of rural pretrial incarceration, Out of Sight:
The Growth of Jails in Rural America. Whereas the National
Center for Health Statistics uses a six-category hierarchy to
delineate county size, for simplicity’s sake, Vera collapses
the four smallest categories into two pairs, for a total of four
categories: (1) large urban metro, (2) large suburban metro,
(3) medium and small metro, and (4) rural areas (KangBrown and Subramanian, 8). A rural county is defined as
any discrete area containing fewer than 50,000 residents.
Though typically sharing common traits such as low population density, rural counties vary widely in many other
respects, with some relying on agriculture and others with
an economic base driven by manufacturing or even tourism
(Erickcek and Watts, ii).
Under this definition, there are more than 1,900 rural counties in the United States, containing about 45 million residents. Nonetheless, many counties with more than 50,000
people have low population densities, so medium-sized
counties that are not part of major urban areas can still have
many of the characteristics of rural areas and be instructive
to examine. We refer to such counties, including Yakima
County in Washington and DeKalb County in Illinois, later
in this paper. Additionally, rural counties can still potentially benefit from solutions that have largely or entirely
been utilized in urban or suburban counties, though careful
thought must be given on how to adapt those to the rural
setting.
4	
Courts have imposed restrictions such as a prohibition on having a
gun on defendants regardless of whether they are on pretrial supervision or
commercial bail, but in the absence of pretrial supervision the enforcement
mechanism for such a condition would simply be if the police happened to
encounter that defendant with a gun.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

As mentioned above, jail populations across the country
have grown substantially over the last four decades. Likewise, pretrial jail populations have grown as well. One estimate shows that in 2013, America’s pretrial jail population
was five times higher (about 462,000 inmates) than in 1970
(about 82,900 inmates) (Kang-Brown and Subramanian, 9).5
Based on this estimate, it would mean that whereas about 50
percent of the nation’s overall jail population was comprised
of pretrial detainees prior to 1993, that number has since
grown to roughly 66 percent.
In Texas, which has one of the largest criminal justice systems in the country, this proportion has become even more
lopsided: In 1994, almost 33 percent of the jail population
consisted of pretrial detainees—better than the national
average. By 2016, however, that proportion had jumped to
almost 74 percent6 (TCJS 1994; TCJS 2016). One reason for
this increase in percent terms is that Texas housed far fewer
convicted felons in jails in 2016 than in 1994—the population of convicted felons dropped from 32,434 in 1994 to
4,628 in 2016. Of the pretrial defendants in the jails in 2016,
28,607 were charged with a felony, 6,152 were charged with
a state jail felony, and 6,484 were charged with a misdemeanor.
These increases are not the end of the story, as an interesting
finding arises in the data when one looks at the breakdown
between county sizes. All four county categories have seen
large upward trends for decades (albeit with brief declines
in some areas). But growth in urban, suburban, and medium/small-sized counties leveled off beginning in 2005 and
started falling shortly thereafter. Growth in rural counties
has continued, though at a lesser rate (Kang-Brown and
Subramanian, 12).
Geographically, pretrial incarceration in rural counties is
highest in the South, with a rate of 355 per 100,000 people—followed by the West at 226; Midwest at 196; and
Northeast at 154 (Kang-Brown and Subramanian, 12). In
terms of demographics, it is not surprising that, as with jails
in other types of communities, the vast majority of detainees are men. Data also show that black people are represented in numbers far greater than in the average population.
However, most rural communities are overwhelmingly
white, and the census of white people in rural jails rose 19
percent from 2004 to 2014, even while dropping 15 percent
in cities. In a more pronounced trend, the population of
5	
A limitation of these aggregate figures is that pretrial detention populations incorporate both defendants who have been in jail one day and one year.
6	
To account only for those pretrial defendants being held in local jails on
local charges, for an original offense—not those arrested for offenses in other
jurisdictions or for those who violated parole but may not have committed an
additional criminal offense—this figure excludes federal contract holdings and
those revoked for state parole violation.

women in rural county jails increased 43 percent from 2004
to 2014, but fell 6 percent in urban jails (Kang-Brown and
Subramanian, 13). Certain rural counties also have significant Native American populations, which raises complex
challenges, such as incorporating pretrial decision-making
into tribal codes and developing agreements between sovereigns to allow for pretrial officers from the county to come
onto tribal lands (Clark 2008).
An increase in rural criminal activity relative to other areas,
perhaps the most obvious factor that would ostensibly
account for disproportionate growth in rural jails, does not
seem to explain it. Not only have overall crime rates been
trending downward in all parts of the country, but rural
areas traditionally have fewer victimizations than more
populated areas (Friedman et al., 1; Truman and Langton,
10). Other inputs must be driving continued growth in rural
jails, even as jail populations in more populous jurisdictions
have begun to fall.

Investigating Potential Causes of Higher Rural
Pretrial Populations

Most of the attention regarding high levels of pretrial
incarceration has been focused on large, urban jails in
recent years. By contrast, there exists a dearth of research to
explain how rural jails fit into the picture. This complicates
any attempt to derive solutions that local governments can
implement to bend the growth curve down.
However, some research is beginning to show that certain
factors can more plausibly explain why rural jails have been
driving increased pretrial populations (at least among most
jurisdictions).

Lack of Focus on the Presumption of Pretrial Release Without Conditions

Perhaps the key factor in determining the overall flow of
cases moving through any local criminal justice system is
that society seems to have forgotten, at least in the case of
pretrial detention, that American citizens are presumed
innocent until proven guilty. This has had both legal and
practical consequences. From the legal side, there is not
a presumption of pretrial release without conditions. As
this paper documents, there is not a focus on individual
defendants to determine if there are legitimate government
interests in keeping them in jail. Instead, the accused are
often subject to bail amounts that preclude them from being
released or to conditions of release unrelated to protecting public safety and preventing flight. On the practical
side, this takes the form of a lack of availability of personnel (judges, prosecutors, defense counsel, etc.) to process
individual defendants. This is particularly relevant to rural
counties, many of which have difficulty attracting sufficient

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

numbers of court personnel—spurring some states to offer
subsidies for qualified individuals willing to work in rural
areas (Bronner). Additionally, many rural areas—particularly in large states—rely on circuit judges who cover multiple
jurisdictions at once (Runge). The large distances these
administrators must cover in a given period create a natural
logjam of court cases, even in those areas with relatively less
crime.
Yakima County, Washington, a non-urban jurisdiction, has
recently demonstrated how best practices and the placement of key personnel can significantly impact the disposition of criminal justice at the local level. In addition to using
a new pretrial assessment tool for all newly charged defendants and reducing use of secured bonds, Yakima County
has also ensured that defense counsel will be present during
first appearances (PJI 2018a). Providing the assessment tool
can help speed the process by providing assurance to Yakima County judges, who previously had to rely largely upon
personal assessments of a defendant’s circumstances.
These new policies likely contributed to a pretrial release
rate that climbed from 53 percent to 73 percent, with no
statistically significant difference in re-arrest and court
appearance rates (Brooker, 6).

Potential Economic Incentives to Grow Jails

As overall local jail populations have surged in recent decades, so too has the proportion of inmates being held on
behalf of other local, state, or federal jurisdictions.
Most local jails in the 1970s reported incarcerating only
those individuals arrested, charged, and convicted in a local
court. However, this had changed by 2013, with a Vera Institute analysis showing that roughly 84 percent of jails were
found to be holding inmates—who were on pretrial detention or had been convicted—who belonged to a different
jurisdiction (Kang-Brown and Subramanian, 13).
This shift in local jail composition can be seen in Texas.
In January 1992, there were 4,689 total contract holdings
spread across Texas’ county jails, a significant number of
which were under federal control (TCJS 1992). By January
2017, this number had climbed to 7,575 total contract holdings—a 62 percent increase (TCJS 2017). These contract
holdings for other jurisdictions grew almost 50 percent
faster than the concomitant increase in those held on local
charges (which grew 41 percent over the same period).
Economic factors can explain increases in contract holdings
in local jails. Overcrowding in state and federal prisons
creates high demand for bed capacity. As local jurisdictions
build out additional beds to address their own concerns,
they have a ready incentive to use any unused capacity—or
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May 2018

even to build capacity beyond their immediate needs—to
house other inmates for financial remuneration, which can
range between $25 and $169 per person (Kang-Brown and
Subramanian, 13).
This has led to unintended consequences for smaller jurisdictions. As Kang-Brown and Subramanian (22) explain,
Grant County, Kentucky, constructed more local jail capacity than it needed for its own use in the late 1990s. Two
things happened shortly after: first, use of pretrial detention
quadrupled. This “build it and they will come” phenomenon
filled jail cells with a population that the county was financially responsible for, rather than sentenced felony offenders
who would come with state money. Second, Kentucky state
prisoners were later removed from local lockups after an
abuse scandal rippled through the system, costing the county a daily per diem from the state and leaving local residents
responsible for paying construction costs on jail capacity
they no longer needed (Wartman; Kang-Brown and Subramanian, 23).
Similarly, Terrebonne Parish in Louisiana expanded its local
jail capacity in 1993 due to overcrowding (Zullo). Prior
to that year, the county’s pretrial incarceration rate never
exceeded the state average (Vera7). However, after 1993,
Terrebonne’s rate of pretrial detention eclipsed the state
average and has trended upward through 2015. While other
factors could explain this increase, this data suggests that
the availability of new jail beds invited greater use of pretrial
detention and was a likely proximate cause.
County officials in Meigs County, Ohio, have also petitioned local taxpayers for additional revenue to build new
jail capacity, with the intention of using a portion to house
detainees from other jurisdictions (Tebben).
Examples such as these ought to ring a cautionary note for
counties that build more capacity than is necessary or that
pencil in anticipated revenue from holding inmates from
other jurisdictions: easy money rarely lasts forever.

The Opioid Crisis

Nearly every day, a new headline somewhere around the
country details another grim account of increasing drug use
and addiction in America, and the wide swath of personal
destruction left in its wake—especially from opioids. In
2016, drug overdoses claimed nearly 64,000 Americans,
according to the Centers for Disease Control and Prevention, with 42,249 of them caused by some type of opioid
(principally heroin and fentanyl) (CDC; Hedegaard et al.).
7	
The “Incarceration Trends” data tool, produced by the Vera Institute for
Justice in 2015, compiles county jail population data from the Bureau of Justice
Statistics Annual Survey of Jails and the Census of Jails. See “Data Sources” for
further explanation.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

Drug overdoses can, and do, occur anywhere and there is
no national data that tracks the share of rural jail admissions attributable to opioid-related arrests. That said, opioid
addiction and its related deaths have conspicuously hit rural
areas especially hard, particularly in Rust Belt and Appalachian states. A notable rise in drug seizures and arrests
has occurred tangential to this increase in addiction and
overdose deaths, as well. A brief snapshot of how opioids
(among other drugs) have flooded two hard-hit states in the
eastern United States—with emphasis on an urban-rural
dichotomy—follows.

As the data in Table 1 shows, urbanized counties—for this
section, any county over 50,000 in population—encounter
more drug arrests across all three opioid-related offenses
on a per capita basis. For two drug subcategories, however—heroin and other/synthetics—rural counties have seen
much greater increases in drug arrest rates between 2013
and 2016. Rural counties under 50,000 saw an increase in
heroin arrest rates of 38 percent, compared to a 20 percent
increase in larger counties over the same period. Arrests for
other and synthetic drugs tell the same story: Rural counties
experienced an increase of 48 percent, compared to almost
19 percent in urbanized counties.

Kentucky State Police (KSP) collects detailed crime information for all 120 counties across the Bluegrass State,
including drug offenses.8 Using KSP crime reports for 2013
and 2016, we cross-referenced arrests for opioid-related
crimes with county-specific population data from the United States Census Bureau, which allowed for a calculation
of drug arrest rates on a per capita basis and a delineation
between urban and rural counties statewide (KSP 2013, 379;
KSP 2016, 383; Kentucky). We then calculated the average
per capita drug arrest rate by county type (see Table 1).

Additionally, Table 1 reveals that very small rural counties in particular have been wrestling with increased drug
problems. These counties, with populations below 10,000
residents, have seen arrest rates for opium/cocaine- and
other/synthetics-related offenses grow at an even faster clip
than larger rural or urban counties. They did, however, experience a drop in heroin arrests during the sample period.

8	
KSP’s drug crime information collapses arrests for opium- and cocaine-related offenses into a single drug category—likewise, for “Other/Synthetics,”
which includes synthetic narcotics such as fentanyl—which complicates efforts
to gain a clear picture of how opioid-related arrests have increased over time
(opium and cocaine each belong to a different drug class). Furthermore, if arrests for each drug move in opposite directions over time, this would confound
accurate analysis of one drug in particular. While we report this data in our
analysis anyway—ultimately, all drug arrests are qualitatively equal so far as jail
population discussions go—caution must be used when viewing this data with
an eye on opioids specifically.
Additionally, heroin was not given its own separate category until 2013. In the
interest of providing an apples-to-apples comparison between years, we limited our data analysis to drug arrests between 2013 and 2016.

Table 1. Average per capita drug arrests in Kentucky, by
county type (per 100,000 residents)

OPIUM/COCAINE

Urban
Rural (50k and <)
Rural (10k and <)

HEROIN

Urban
Rural (50k and <)
Rural (10k and <)

OTHER/SYNTHETICS

Urban
Rural (50k and <)
Rural (10k and <)

2013

69.24
52.35
35.28

2016

85.92
61.45
53.60

% CHANGE
24.09%
17.37%
51.92%
 

85.74
31.00
21.03

102.93
42.79
19.27

20.05%
38.02%
-8.35%
 

832.73
812.77
806.96

988.68
1204.21
1227.96

18.73%
48.16%
52.17%

Source: Authors’ calculations from data collected by the Kentucky
State Police and U.S. Census Bureau.

Ohio has one of the highest drug overdose death rates in
the country, with sharp increases in opioid-related deaths
in particular. Between 2004 and 2016, heroin-related deaths
increased by 1,064 percent, while deaths related to fentanyl
leapt by a staggering 3,043 percent over a similar period
(ODH, 6).
In a similar fashion as Kentucky, urbanized counties containing some of Ohio’s largest cities—including Cuyahoga
County (Cleveland), Franklin County (Columbus), and
Montgomery County (Dayton)—experienced some of the
first significant heroin problems beginning in 2004 (Wedd,
30).9 Data for related arrests in rural areas for heroin
was unavailable (probably due to their infrequency). By
2014, much of the state—in both rural and urban counties—was blanketed with heroin-related incidents,10
which increased by 124.5 percent between 2011 and
2014 alone (Wedd, 9). However, opioid-related incidents more generally were a problem long before heroin
burst onto the scene in earnest in 2010, with the former
rising over 600 percent on a per capita basis between
2004 and 2014.
Many other states are experiencing similar troubling
increases in opioid-related arrests, among other drugs.
9	 Several other urbanized counties in Ohio also experienced increases
in heroin arrests in 2004, including Hamilton County (Cincinnati), Butler
County (Cincinnati), Lucas County (Toledo), and Miami County. However,
according to Wedd (30), the arrest rates in these counties in 2004 were
unstable and therefore are not included in the discussion above.
10	 An “incident” is defined by Wedd (6) as “one or more offenses committed by the same offender, or group of offenders acting in concert, at
the same time and place.”

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

This data has obvious implications for criminal justice systems located in rural counties, since such areas do not commonly possess the infrastructure allowing them to absorb
significant upward swings in daily receives into their local
jails as larger jurisdictions can (as we previously explained).
Most rural areas not only lack the basic bed capacity to
accept new inmates, but also the pretrial services and supervisory staff needed to oversee individuals in the community,
or otherwise steer them into available treatment or counseling services.
In Maine, a mostly rural state that has also been hit hard by
the opioid epidemic, leaders of the nonprofit Maine Pretrial
Services, which contracts with 10 counties, provided insight
in response to our inquiry about the impact of this problem
on pretrial justice:
The opioid epidemic has caused an exacerbation of rates
of pretrial incarceration. Specifically, jurists are less
comfortable releasing individuals suspected of or reporting out as individuals with substance use disorders.
Many cases require a “bed to bed” transfer from the
jail to a residential treatment facility, in which beds are
scarce. Jurists are also wary of certain types of medication-assisted treatments, and have increased restrictions
on use and possession (Simoni and LaGrega).
Despite the lack of national statistical data showing the
connection between growing jail populations, including
pretrial defendants, and the opioid crisis, the experiences
of many counties suggest the trends are not unrelated. In
DeKalb County, Illinois, the pretrial supervisor explained:
“The opioid epidemic has led to many jurisdictions holding
non-violent offenders in an attempt to save the defendants
from themselves, as opposed to concerns about failure to
appear or arrest for a new charge” (Venditti). This speaks to
the need to provide alternatives to recognizance release and
money bail, such as pretrial services coupled with treatment. In Mercer County, West Virginia, the jail had 2,000
more inmate days in 2016 than 2015, imposing significant
additional costs on taxpayers that a county official said is 90
percent attributable to opioids (Seligson and Reid). In Ross
County, Ohio, which is mostly rural, the mounting costs of
the opioid crisis are not limited to the jail itself; with more
and more parents either in treatment, jail, or otherwise
unable to care for their child due to opioid addiction, the
county’s child services budget increased to $2.4 million
from $1.3 million. This suggests that, if some opioid-related defendants could be stabilized through treatment and
diverted from substantial pretrial incarceration, there could
be cost savings in other systems if they were then able to
provide a suitable home for their child or children.
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May 2018

Amidst the opioid crisis, a rise in methamphetamine cases
in rural areas has gotten comparatively little attention. A
2017 study by the Federal Bureau of Investigation (FBI)
and Wisconsin’s attorney general found that such cases
increased by 349 percent in the state from 2011 to 2015. The
increase was most pronounced in rural areas, particularly
northwestern Wisconsin (Tolomeo).
A detailed analysis of the factors driving continued opioid
(and other drug) addiction and its sequelae in America is
beyond the scope of this paper. However, policymakers in
areas hard hit by drug addiction should heed a word of caution. In the absence of any obvious, countervailing factors
that will attenuate this growth anytime soon, rural counties
are particularly at risk of experiencing additional backlogs
of drug cases awaiting adjudication—meaning many pretrial populations are likely to continue growing unabated.
Policymakers should ensure that defendants in low-level
drug cases are quickly screened and connected to treatment
through diversion or as a condition of pretrial release, rather than languishing in jail. This can help ease pressure on
already overtaxed counties and allow for more efficacious
processing of court cases.

Lagging Socioeconomic Performance in Rural Areas
The surge in rural pretrial incarceration has occurred over
the same time period that rural areas have lagged in other
metrics, such as personal income, teenage pregnancy, family
breakdown, and overdose deaths (Overberg). Last year, the
Wall Street Journal went so far as to describe some rural
areas that have been decimated by the loss of manufacturing
jobs as “the new inner cities.” Rural areas have lower average
incomes, particularly in southern states that have the highest levels of incarceration (Census Bureau).

A March 2018 study found that the loss in manufacturing jobs, many of which are in rural areas, has been a key
driver of the opioid crisis, particularly among men out of
the workforce (Hurst et al.). None of this is to suggest that
poverty is an excuse for criminal activity, as parts of Appalachia have long had both high rates of poverty and low rates
of crime, but it may well be that the psychological impact of
falling from a prior economic position to a lower one, while
still having the expectations and obligations associated with
one’s former place in society, is particularly devastating
(Williamson).
While an inability to afford money bail is a problem in all
parts of the country—especially since only 41 percent of
Americans report in a recent Bankrate survey that they
could pay unexpected expenses from savings—practices such as the use of bail schedules that do not take
into account a person’s ability to pay can have the most
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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

pernicious effects in rural areas due to economic malaise
and the lack of pretrial services documented earlier herein
(Cornfield). A 2018 qualitative study of judicial bail decisions in California found that bail schedules were the most
influential factor in the judge’s decision as to the amount of
bail and that judges usually did not consider ability to pay
(Ottone and Scott-Hayward).

Evaluating Forms of Pretrial Release

The extent to which different forms of pretrial release are
available can have an impact on the rates of pretrial detention. In systems that rely largely or entirely on risk assessment, pretrial detention rates range from about 6 percent in
Washington, D.C., 8 percent in Travis County, Texas, and 18
percent in New Jersey following reforms that took effect on
January 1, 2017 (Avilucea and Abdur-Rahman; Carmichael

et al.; Grant, 4). In contrast, the pretrial detention rate in
Tarrant County, Texas, which relies almost exclusively on
money bail, is 32 percent (Carmichael et al., 13).
The Bureau of Justice Statistics (BJS 2010, 1) has noted that
limitations make it problematic to compare the results of
different forms of pretrial release across various jurisdictions. Notably, in many jurisdictions, defendants can be
released on both a surety bond and pretrial supervision,
which can complicate data analysis. Studies that compare
counties suffer from the limitation that counties relying
primarily on commercial bail typically release a lower percentage of those arrested while studies of different methods
within a single county suffer from the difficulty of determining which release mechanism culled first from the pool

A Closer Look at Texas’ Counties
A recent detailed survey of 100 jurisdictions in Texas was
performed to assist policymakers in decision-making involving
risk-informed release (Carmichael et al.). The survey identified the
100 of the 254 counties in Texas that employ some form of pretrial
supervision, encompassing 60 rural-sized counties and 40 larger
counties—providing a suitable snapshot of pretrial conditions
across Texas.
Among the counties surveyed, 63 of them provide pretrial
supervision to some defendants with both surety (financial) and
personal bonds (also known as “recognizance” bonds). Of the remaining 37 counties, 18 provide pretrial supervision in conjunction
with personal bonds, while 19 provide only surety bond supervision.
Most of the counties that provide supervision do so through probation departments that serve those counties, though state funding
for probation does not cover pretrial defendants.
Only 25 (10 percent) counties utilize some form of risk-assessment tool to help inform judge’s release decisions regarding an
individual’s threat to public safety, or their risk of flight (Carmichael
et al., 44).
Slightly more than half (55) of surveyed counties provide “substantial” pretrial supervision. Such counties have operational costs
ranging from $25,000 to $4 million, staff FTEs ranging from at least
1 and up to 39 personnel, and active caseloads ranging from 30 to
5,500 (Carmichael et al., 44). Unsurprisingly, most of these counties
(35) are larger-than-rural in size, making them more likely to possess necessary financial resources to provide suitable supervision.*1
*	 Carmichael et al. do not explicitly delineate which counties are rural or
otherwise on Table 15 of their report. To do so, we cross-referenced all 100
counties on this list with current population data from the Census Bureau
(see “Texas” in Reference list).

But 20 rural counties are also able to provide substantial pretrial
supervision. Ten of these counties even contribute to the cost of
operation (while the remainder are funded entirely by defendants):
•	 Personal bond supervision only: Erath
•	 Surety bond supervision only: Stephens, Young
•	 Personal and surety bond supervision: Blanco, Brown,
Burnet, Caldwell, Llano, Mills, and San Saba.
The remaining 45 jurisdictions provide only “minimal” pretrial
supervision services—defined as having operating costs below
$25,000; having less than 1 FTE providing supervisory services; and
caseloads between 1 and 15 defendants. As might be expected, 40
of these 45 counties are considered rural.
Defendants released from pretrial detention on either personal or surety bond are supervised under a wide array of methods.
In-person reporting and randomized drug testing are among the
most popular for both bond types. Drug and alcohol monitoring are
also frequently utilized, but counseling and treatment services—
the “next step” on the substance abuse continuum—are only provided in about a third of supervision programs (Carmichael et al., 46).
It is interesting to note that automated text reminders are
used in only 74 percent of personal bond releases and 61 percent
of surety bond releases. Evidence has shown that text reminders
can increase initial and subsequent appearance rates (Murphy,
19). Given cell phone ubiquity and the relative ease of setting up
simple, automated messages to remind defendants of court dates,
expanding use of such reminders would be a low-cost, low-effort
way of expediting court dockets and reducing unnecessary pretrial
detention.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

of those arrested, likely leaving a more challenging clientele
remaining.
While failure to appear at a specific hearing delays justice,
the greatest concerns are re-arrest for serious crimes followed by long-term absconding. First, not only could re-arrest involve harm to a victim, but re-arrest is also a much
more common problem, as illustrated by Alaska where
prior to the 2017 reforms 37 percent of pretrial defendants
were re-arrested before trial while only 14 percent had a
failure to appear (Fox and Cravez). Second, many who fail
to appear will later be tracked down and held accountable.
Indeed, an analysis of defendants released in 2015 in Utah
found that 89 percent of defendants who missed an initial
court appearance ultimately appeared within three months,
with nearly identical rates for those released on commercial
bail and cash deposit bond, the two methods of release in
the state (Legislative Auditor General of Utah). Finally, as
discussed below, technological advancements are making
it increasingly easy to inexpensively track a person’s whereabouts, but a device that reduces the impulse to commit
crime is not on the horizon.
An October 2010 study authored by criminologist James
Austin and his colleagues at the JFA Institute validated the
pretrial risk assessment instrument that was used in Kentucky—which discontinued commercial bail bonding in
1976 (Austin et al. 2010). However, Kentucky does require
cash be posted with the court in many cases and in fact,
in 2016, there were almost 15,000 cases where defendants
were held in jail on bond amounts less than $1,000 in 2016
(Spalding). Legislation considered by Kentucky lawmakers
in 2018 would have, among other things, ensured that lowrisk defendants could be released without regard to ability
to pay (Cheves).
Prior to the study by Austin, this particular instrument had
not been validated in Kentucky, though the pretrial risk
instrument is based on other validated instruments. This
study determined that, of 52,344 pretrial interviews conducted between July 1, 2009 and September 30, 2009, some
74 percent were released in part based on the findings of
the assessment instrument. That is higher than the national
average in 2004 of 56 percent (Clark 2010, 48).
In 2013, Kentucky adopted a new statewide risk assessment instrument that does not require an interview. The
instrument was first validated on a representative sample
of the state’s population. This means it was tested retrospectively to show that the risk level designations do in fact
correlate with failure to appear and re-arrest rates. Among
the questions typically included in such instruments are
whether the person has prior arrests and convictions, prior
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May 2018

failures to appear, and prior violent convictions. Following
its adoption in July 2013, a greater percentage of defendants
are obtaining release prior to trial while at the same time,
new offenses by those released prior to trial have dropped
nearly 15 percent (Arnold Foundation 2014, 1). Kentucky
maintains an 88 percent appearance rate and a 91 percent
public safety rate, which has been relatively consistent over
the last several years (McPherson; Kentucky Statistical
Analysis Center). However, a December 2017 state report
showed that progress has plateaued because courts are
requiring low-risk defendants to post cash with the court
before being released in 31 percent of cases (up from 22
percent five years ago), effectively overriding the assessment
recommendations (CJPAC).
A recent study of two urban Texas counties (Travis and
Tarrant) by the Public Policy Research Institute (PPRI)
found that the county using a validated risk-assessment tool
released fewer defendants who committed violent crimes
while on bail (Carmichael et al., 19). While Tarrant County relied exclusively on commercial bail, in Travis County
about half of defendants were released on pretrial services
with supervision. The PPRI study also concluded that
utilizing risk assessment costs $900 less per defendant (23).
This is mostly due to the high costs of unnecessarily jailing
low-risk people and the costs of crime from releasing highrisk defendants.
For example, Cook County (Chicago) Sheriff Tom Dart
notes that the most dangerous gang leaders are often able to
post even high bail amounts because they and their fellow
gang members have access to significant funds, which may
be proceeds from illegal activity (Lighty and Heinzmann).
In one highly publicized Chicago case, a high-ranking gang
member and drug dealer facing serious weapons charges
posted $20,000 and upon leaving jail murdered a witness in
the case, but under Illinois law the court did not have the
authority to simply deny bail (Lighty and Heinzmann).
In striking down Harris County’s misdemeanor bail system,
the federal district court relied on a study of misdemeanor detainees from 2008 and 2013. That research projected
that, due to the criminogenic impact of extended pretrial
incarceration, the use of personal bond for many low-risk
misdemeanor defendants might have resulted in 1,600 fewer
felonies and 2,400 fewer misdemeanors (Heaton et al., 787).
A 2017 review of data in Harris County found across all risk
levels that those defendants released on pretrial supervision
had the lowest recidivism rates followed by those released
on commercial bail (Fabelo et al. 2017, 17). Those who were
detained pretrial had the highest recidivism rates. The findings were similar in Tarrant County.
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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

A national study examining 27 counties made several findings concerning the efficacy of pretrial supervision:
1) a pretrial program’s use of quantitative or mixed
quantitative-qualitative risk assessments lowers a defendant’s likelihood of pretrial misconduct; 2) a pretrial
program’s ability to impose sanctions and report to
courts is associated with less pretrial misconduct; 3) the
more ways a pretrial program has to follow up a failure
to appear, the lower the likelihood of a defendant’s pretrial misconduct; 4) a pretrial program’s use of targeted
mental health screening lowers a defendant’s likelihood
of pretrial misconduct; and 5) a pretrial program’s
ability to supervise mentally ill defendants lowers the
likelihood of a defendant’s re-arrest (Levin, David, 1).
When it comes to pretrial supervision, just as with schools,
there is the potential for high-performing and low-performing entities. The National Association of Pretrial Service
Agencies has adopted guidelines and standards that provide
a helpful framework (NAPSA). Additionally, the National
Institute of Corrections has outlined a set of performance
measures for pretrial supervision programs (NIC, v). In
addition to the proper focus on those measures that reflect
the defendant’s behavior, such as ensuring re-appearance
and avoiding re-arrest, it is also important to monitor the
performance of actors in the judicial system. For example, a key recommended measure is the concurrence rate,
which provides an indication of the relationship between
the results of the actuarial risk assessment and the release
supervision level. Id. This should show, for example, that
defendants assessed as low risk are by far most likely to be
released on their own recognizance. Id. Pretrial supervision
programs in Washington, D.C., and Yamhill County, Oregon, (which has about 100,000 people) report concurrence
rates 72 and 88 percent respectively (Evenson; Keenan and
Cooper).
A key issue that must be balanced is costs. Clearly, no
defendant should be excluded from any pretrial services or
diversion program due to an inability to pay. On the other
hand, those defendants who can pay are often asked to do
so, whether that is a monthly supervision fee of $25 or a
fee for a monitoring device. Counties should track savings
on jail costs alongside costs to taxpayers that are inevitably associated with supervising a high number of indigent
defendants. As explained below, there are examples of
nonprofits providing pretrial services rather than government, but to the extent government provides those services,
performance will be affected by overarching challenges
confronting all government agencies, which include civil
service rules making it difficult to discipline employees
and high pension costs. Another important consideration

is to ensure independence of pretrial services agencies as
well as probation departments so that practices and types
of supervision conditions are consistent across the agency,
rather than a fiefdom where one officer is assigned to each
court and each judge imposes their own sets of conditions
that are unmoored from any standards or evidence (Padilla;
Fabelo et al. 2011, 6). Finally, courts must ensure pretrial
supervision is not used for low-risk defendants who should
be placed on recognizance release.
Another factor to consider in addition to reappearance
and re-arrest rates is the time it takes to obtain release.
Defendants generally are able to secure a nonfinancial
release more quickly than a financial release (Cohen and
Reaves, 1). According to the Bureau of Justice Statistics, 59
percent of felony defendants released on nonfinancial bail
are generally released within one day, compared to only 45
percent for financial releases. The gap narrows by the end
of a week of detention, with 80 percent for nonfinancial
releases and 76 percent of financial releases secured within
a week of arrest (5). This could be because some defendants
who initially had money bail set were eventually reviewed
for non-financial release, such as through a bail reduction
hearing requested by their counsel.
According to a Bureau of Justice Statistics study of state
court felony defendants released between 1990 and 2004,
those released pursuant to emergency court orders to
relieve jail overcrowding had double the failure rates of
all other forms of release (Cohen and Reaves, 8). Those
released through posting property as a collateral had the
lowest rate of failing to reappear at 14 percent. Outcomes
for commercial bail and pretrial supervision (conditional)
release were similar, with those released on pretrial supervision having a slightly lower re-arrest rate and those released
on commercial bail having a slightly higher re-appearance
rate. Defendants released on their own recognizance had a
relatively high failure-to-appear rate at 26 percent, exceeding that of all forms of release except wholesale releases to
comply with court orders.
Key caveats are that this analysis of BJS data does not compare outcomes of defendants with similar risk levels who
received various forms of release and indeed it predates the
development of more accurate risk-assessment instruments.
It also (1) does not account for defendants who may be on
both commercial bail and pretrial supervision; (2) does not
account for an unknown number of cases where bondsmen
persuade a court to release them from a bond because the
defendant is non-compliant; and (3) compares jurisdictions
that rely on different forms of release. Jurisdictions relying
primarily or entirely on commercial bail release a significantly lower share of the total number of people arrested,

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

which was exemplified by the earlier comparison of two
Texas counties (Cohen 2010; Carmichael et al., 10-13).
For both constitutional reasons and for achieving the best
outcomes, low rates of pretrial detention are desirable and,
accordingly, jurisdictions at a minimum should ensure that
alternative forms of release are available.
In 2017, the Utah state auditor examined 2015 pretrial release outcomes in a state where 85 percent of defendants are
released on commercial bail while 13 percent posted a cash
deposit bond with the county which is returned if the defendant makes all required appearances (Legislative Auditor
General of Utah, 6). The remaining 2 percent of defendants
were released on both. In 2015, 26 percent of defendants released on commercial bail had a failure to appear compared
with 17 percent released on cash deposit bond (11).
In 2018 the Charles Koch Foundation, Arizona State
University, and the Sandra Day O’Connor College of Law
released a multi-volume Academy for Justice compendium
(Academy for Justice), which contained a 27-page chapter
on pretrial justice and bail, which makes similar findings and recommendations as this paper (Stevenson and
Mayson).
Similarly, the Buckeye Institute published a report in late
2017 critical of Ohio’s money bail system, highlighting
incidents where clearly dangerous individuals committed
heinous crimes after purchasing their release, while poor,
low-risk defendants languished in jail (Dew, 3). Of course, it
is important to temper conclusions drawn from specific incidents, as there are undoubtedly horrific crimes committed
by defendants awaiting trial on all forms of release. However, as outlined herein, the data demonstrates that employing an actuarial assessment of public safety risk lowers the
chance of such incidents.
Two other recent reports by state-based think thanks are
also notable and come against a backdrop of significant
reforms. A Pegasus Institute study from 2017 on Kentucky’s
bail system found that, even though the state has not had
commercial bail since 1976, courts are inconsistent in the
amounts of cash they require various defendants to post
with the county to obtain release, resulting in some low-risk
defendants remaining in jail while other high-risk defendants go free (Crawford, 2).
While a defendant released on bail who posts a 10 percent premium does not receive those funds back even if
they make all of their court appearances, ostensibly the
county would collect on the full amount of the bond from
the bondsman if the defendant fails to appear (though
the bondsman is not liable whatsoever if the person is
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May 2018

re-arrested). However, the reality on forfeitures for fugitives
is often murkier. In Texas, a bondsman may have up to a
year to produce an absentee defendant before the case is
ruled a forfeiture. Even then, the county must civilly sue the
bondsman to collect.
Counties have a mixed record of enforcing forfeitures.
For example, in 2009, Harris County, Texas, collected $1.9
million in past-due payments from bondsmen, but $26
million in forfeited bonds remained outstanding that had
accumulated over many years, some involving bondsmen
who have gone out of business or died (Olsen). In other
counties, perhaps because counties often have limited legal
resources to bring the civil suits required to collect forfeitures, the forfeitures are settled for considerably less than
the actual amount. The county treasurer in Lubbock County
stated that the county typically settles for only 5 percent
of the bond amount when a defendant flees, which is less
than the 10 percent that the defendant typically posts to
the bondsman (however, due to a lack of published data on
this phenomenon, it is not possible to fully assess the extent
of this practice) (Sullivan). Similar reports of unpaid or
greatly reduced forfeitures have been documented in Dallas,
Fort Worth, Waco, and Florida. (Krause and Timms 2011a;
Krause and Timms 2011b; Berard; Witherspoon; Morgan).
A related challenge is the lack of transparency on the part
of many county governments in this area, making it difficult
for the public to keep track of the amount of unpaid forfeitures that are outstanding, whether due to bankruptcies by
bondsmen or other reasons. Even if a bondsman is eventually held accountable for a forfeiture, the insurance company backing the bondsman actually pays out and bondsmen
with repeated forfeitures who are dropped by their insurer
may be able to find another insurer (Eligon).
Finally, the Rio Grande Foundation released a report in
2018, entitled Mend It, Don’t End It: Reforming Bail Reform
in New Mexico, which lends support to the substance of
the state’s 2016 reforms, while suggesting improvements to
the procedural rules that the New Mexico Supreme Court
developed to implement it (Ralph and Muska, 4-9). In
November 2016, nearly 9 in 10 New Mexico voters adopted
Amendment 1, which included both a preventive detention
provision allowing bail to be denied for a felony if the court
after a hearing finds “clear and convincing evidence that no
release conditions will reasonably protect the safety of any
other person or the community” and a provision stating
that “a person who is not a danger and is otherwise eligible
for bail shall not be detailed solely because of financial inability to post a money or property bond.” The Rio Grande
report recommends that the rules adopted by the Supreme
Court for implementing this amendment be revised to
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provide more flexibility so that both prosecutors and
defense lawyers have adequate time to review the evidence
before the preventive detention hearing.
Given that the changes in New Mexico are so recent, there
is no study that conclusively evaluates the impact. In New
Jersey, where similar reforms involving risk assessment
and preventive detention went into effect at the beginning
of 2017, data does show a 20 percent drop in pretrial jail
populations (Grant, 4). However, data on failure to appear
and re-arrest rates is not yet ready because such data was
not available to provide a baseline for the evaluation. It is
also notable that both states made a few tweaks in the first
several months of their new systems which could affect the
data over the course of 2017 once it is available.
Similarly, Alaska adopted major pretrial reforms as part of
Senate Bill 91 in 2016. Major provisions of this bill went
into effect at the start of 2018, which means it is too early
to assess the impact. The legislation came on the heels of
pretrial incarceration growing 81 percent from 2005 to 2014
against a backdrop of high jail costs of $150 per day—driven by the state’s unique geographic features and largely rural
population which, in some cases, is accessible only by air or
boat (Kelly). With the new system, pretrial officers conduct
a validated risk assessment which is used by the court to
inform their decision as to whether to detain or release
with or without a form of supervision, such as electronic
monitoring (AMHTA). The new system does not preclude
the use of financial conditions, including commercial bail,
but does establish a presumption against it for defendants
assessed as being a low-risk for flight who are not charged
with the most serious offenses (Kitchenman; Rivera).
In regard to financial conditions, research on defendants in
Colorado examined the impact of unsecured bonds compared with secured bonds on both re-arrest and re-appearance rates. The results demonstrated that unsecured bonds
were equally effective in ensuring defendants returned to
court and were not re-arrested (Jones, 10-11). The study
provided an apples-to-apples comparison of defendants at
each risk level, making it particularly informative.
One jurisdiction that has a long record of success with very
low rates of both money bail and pretrial detention is Washington, D.C. While the nation’s capital has not traditionally
attracted attention for good governance or high levels of
public safety (though it has, like the rest of the nation, seen
a drop of more than half in its crime rate since the mid
1990s), the D.C. Pretrial Services Agency has been a pioneer in the use of risk assessment and pretrial supervision
(District of Columbia). Some 84 percent of defendants are
released at their initial appearance, often with conditions,

and after a detention hearing three to five days later, another 64 percent of the remainder are released, resulting
in a total pretrial release rate of 94 percent (Keenan and
Cooper). Even with such a high rate, some 88 percent of
defendants successfully complete their pretrial period, with
only 12 percent being re-arrested (PSADC). Approximately
5 percent of those defendants released on supervision are
required to post money or collateral with the D.C. Pretrial
Services Agency (PJI 2018b, 2).
One of the most important takeaways from the Washington, D.C., experience is that even though most defendants
who do not fall into the low-risk category on a pretrial risk
assessment can still be safely released. Otherwise, Washington, D.C., could not achieve such outcomes with a 94
percent pretrial release rate (PSADC). This leads to several
conclusions: First, there are often ways to remediate the
risks. For example, a homeless person would likely be at a
high risk of not appearing in court, but if they were connected to temporary housing, even a shelter, that may no
longer be the case. Second, some defendants may land in
the lowest risk category in one tool, but in a higher category
in another tool. This is consistent with empirical research
conducted by the Laura and John Arnold Foundation which
found that pretrial supervision can reduce risks among
moderate- and high-risk defendants (Lowenkamp and Van
Nostrand 2013, 12-17). The study concluded that moderate- and high-risk defendants were found to be more likely
to appear in court if on pretrial supervision and less likely
to be re-arrested, although the difference on re-arrest was
statistically significant in some multivariate models but only
approaching statistical significance in another. Id.
While Washington, D.C., has had positive results through
the release of the vast majority of defendants on pretrial
supervision, New York City provides a model that demonstrates high rates of re-appearance, with a record of releasing nearly 70 percent of defendants on their own recognizance without conditions (Fox et al., 6). In 2016, 93 percent
of defendants in New York City released on their own
recognizance showed up on their court date or within 30
days of their court date (Fox et al., 17). New York City uses
pretrial supervision and money bail (of both the commercial and non-commercial variety) in the remaining 30 percent of cases that typically involve higher-risk defendants.
An analysis of New York City results found that, among
the minority of defendants who received money bail and
the minority within that data set who were able to post it,
failure-to-appear rates were only better than similar recognizance defendants in the high-risk category, and that commercial bail was no more effective than funds posted with
the county (Phillips 2012, 139). Re-arrest data compiled

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

among recognizance releases in 2001 when state law prohibited public safety considerations (meaning anyone without
a high flight risk was to be released on recognizance) found
a 17 percent re-arrest rate, but with only 3 percent for a
violent charge (Siddiqi 2009, 7). While New York City is
now seeking to drive down re-arrest rates further through
supervised release of high-risk defendants, its commitment
to recognizance release for the majority of defendants has
remained constant amid the city’s historic decline in crime
rates (Redcross et al., 2).

Consequences of Pretrial Detention

It is self-evident that, if someone is detained in jail prior to
trial, they are incapacitated from committing an offense in
the free society during that period. When dealing with a
defendant who poses a high risk of being re-arrested for the
most serious types of crime, that benefit is highly significant.
The most direct economic impact of pretrial detention is
the fiscal cost to taxpayers. This primarily affects county
taxpayers who foot the bill for county jails, although a small
number of jurisdictions also have city jails. Jails are one of
the top expenses in county budgets. Given that, nationally,
62 percent of those in county jails are awaiting trial, much
of the total jail costs are attributable to pretrial incarceration11 (Minton and Golinelli, 11).
Notably, many people detained prior to trial are never convicted nor receive probation—meaning that the bulk of the
punishment and fiscal cost of the entire case was incurred
prior to trial. Two studies in New York City found that 46
percent of both felony and misdemeanor defendants who
did not make bail were not sentenced to incarceration—
with about half never convicted and the other half receiving
a non-custodial sentence such as probation (Philips 2008, 7;
Philips 2007, 59). Accordingly, the pretrial disposition of the
case frequently determines whether a defendant is subjected to incarceration for any substantial period. Thus, since
on the one hand if the court places someone on probation
they are confident they will report and not commit a serious
offense, it may seem counterintuitive that the same person would have previously been detained for an extended
period prior to trial at great expense to taxpayers. However,
it could be that the lack of post-trial incarceration for those
who were incarcerated pretrial is because they are let off
with time served. While jail costs $60.12 per day, probation
in Texas only costs about $3 per day (Legislative Budget
Board, 4-5).
11	 See Appendix Table 3 in Minton and Golinelli. The estimated number of
unconvicted inmates in local jails in 2013 was 62 percent, while the convicted
total was 38 percent.

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May 2018

In addition to costs of the days spent in jail prior to trial, there are also local and state costs that result from the
greater likelihood that those detained pretrial will ultimately be found guilty, sentenced to prison, and given a
longer sentence. According to a Princeton University study,
“pre-trial release decreases the probability of being found
guilty by 15.6 percentage points, a 27.3 percent change from
the mean for detained defendants.” (Dobbie et al. 2016,
3). This could be in part attributable to the leverage created by pretrial detention for entering a guilty plea even if
innocent, which in many misdemeanor cases is largely or
entirely for time served. In Harris County alone, according
to comments to NBC News by current District Attorney
Kim Ogg, at least 317 defendants pleaded guilty under her
predecessors to drug possession charges in this situation
even though drug tests that came back a year later found
the substance at issue was not in fact narcotics (Schuppe).
Additionally, since those in jail prior to trial are not working, they are less likely to be able to afford their own legal
representation and to be able to assist their lawyer from
jail in marshalling the facts and evidence. A University of
Pennsylvania study found that the 13 percent higher chance
of being found guilty was mostly attributable to people who
pled because they could not afford bail and likely would not
have otherwise been convicted (Stevenson 2017a, 17).
Research shows that otherwise similar defendants who are
detained pretrial are much more likely to ultimately be sentenced to jail or prison than those who are released. A study
of Florida offenders found that, after adjusting for other
variables, whether the individual was detained up until their
trial was strongly associated with the likelihood of a prison
sentence and with a longer incarceration sentence (Williams). One study found defendants detained pretrial are
four times more likely to ultimately receive a jail sentence
and three times more likely to ultimately receive a prison
sentence compared with otherwise similar defendants who
are released prior to trial (Lowenkamp et al. 2013a, 3). Significantly, the effect is even more pronounced among those
assessed as low-risk.
Likewise, a 2017 Stanford University study of misdemeanor
pretrial incarceration in Harris County, Texas, found that
detained defendants are 25 percent likelier than similarly
situated releasees to plead guilty and 43 percent likelier to
be sentenced to jail, with sentences that average more than
twice as long (Heaton et al., 711). This study also found that
even after controlling for factors such as bail amount, offense, and criminal history, those who are detained pretrial
are more likely to commit future crimes, which may be attributable to the negative influences of the jail environment
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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

and the loss of pro-social factors such as employment,
family, and housing during extended jail stays.
Unemployment is well-known to be a major risk factor
for re-offending—or for offending for the first time, if the
individual was not guilty in the first place (Chief Inspector
of Prisons, 23-24). Research has found that low-risk defendants who are in jail for even a few days have a greater
likelihood of committing new crimes than similarly situated
defendants who are held no more than 24 hours, with the
percent increase ranging from 17 percent for those held 2 to
3 days to more than 40 percent for those held 15 to 30 days.
Researchers Christopher Lowenkamp, Marie VanNostrand,
and Alexander Holsinger (2013b, 3) suggest that the observed higher recidivism rates could be the result of a loss
of community stability, as a protracted jail stay undermines
employment, housing, marriages, and other protective
factors. Therefore, the economic impact of excessive pretrial
incarceration not only includes incarceration costs before
and after adjudication, but also the fiscal and human costs
of increased recidivism.
A Princeton University study that examined 420,000 defendants found that “initial pretrial release increases the
probability of employment in the formal labor market three
to four years after the bail hearing by 9.4 percentage points,
a 24.9 percent increase from the detained defendant mean”
(Dobbie et al. 2017, 3; Dobbie et al. 2018, 204). The study
concludes that after accounting for jail expenses, costs of apprehending defendants, costs of future crime, and economic
impacts on defendants, the net benefit of pretrial release at
the margin is between $55,143 and $99,124 per defendant
(Dobbie et al. 2017, 3; Dobbie et al. 2018, 204).
The 2017 study by researchers at Harvard, Yale, and Princeton—results of which were summarized in a 2018 article
in the American Economic Review—found that those who
cannot make bail and are held in pretrial detention are
more likely to enter a guilty plea and have lower future labor
market participation and earning rates (Dobbie et al. 2017,
2; Dobbie et al. 2018, 203). Likelihood of employment was
24.9 percent lower for those detained. (Dobbie et al. 2017,
23; Dobbie et al. 2018, 204).
Perhaps most significantly, because the study tracked defendants for a two-year horizon, it was able to determine that,
while those released from jail prior to trial were of course
more likely to be charged with a new offense during the
pretrial period—they were less likely to be re-arrested in the
remaining period—there was no net public safety benefit
of pretrial incarceration (Dobbie et al. 2017, 12; Dobbie et
al. 2018, 214). Of course, this does not mean no one should

be detained prior to trial. While detaining everyone would
produce no net benefits, detaining certain defendants can be
net beneficial to the extent that an objective judicial review
based on the factors identified in Salerno and informed by
an actuarial assessment instrument can successfully identify those at greatest risk to seriously re-offend during the
interim. Since those at greatest risk of being re-arrested for
another serious offense are also those who are likely to receive a significant prison term, by carefully limiting pretrial
incarceration as suggested in this paper, the net increase in
incarceration and costs can be minimized.
In addition to the costs to taxpayers and the defendant,
there may be costs involving family members. For example,
research has found many negative outcomes for children
whose families are incarcerated, including dropping out
of school and ultimately ending up dependent on government or incarcerated themselves, though such costs may be
distant. But more research is needed to distinguish between
correlation and causation (Baughman 2017b, 7).
The economic cost of money bail on defendants who are
never convicted is neither theoretical nor trivial. While this
was a statewide report incorporating both urban and rural
areas, the Maryland Office of Public Defender found that
more than $75 million in bail bond premiums were charged
in cases that were resolved without any finding of wrongdoing (Gupta et al, 4). The report also found that the 15 ZIP
codes with the highest totals in bail bonds from 2011 to
2015 were among those with high poverty rates.
Still, the most profound economic impact comes from pretrial incarceration itself, and that impact is the same whether the defendant is in jail because he cannot afford 10 percent of the total bond in a jurisdiction that uses commercial
bail, or 100 percent of an ostensibly smaller total amount
in a state like Kentucky that has abolished commercial bail
but requires money be posted to the court to obtain release
in 34 percent of cases (CJPAC, 18). Thus, the core challenge
remains addressing the use of financial conditions of release
as a backdoor proxy for preventive detention unanchored
by any limitations or objective standards but rather driven
by judges who appear on the ballot in most states and have
an incentive to avoid taking unnecessary risk. The Kentucky
experience demonstrates that in achieving a pretrial release
system that fully reflects our constitutional principles and
the values embedded in them, the question of whether
money is a prerequisite for release or part of the method of
release is more important than whether the funds involved
are solely posted by the individual or partly by the individual and a commercial surety.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

In sum, a cost-benefit analysis that sought to monetize
both the possible short-term crime prevention benefits, jail
costs to taxpayers, and longer-term possible negative effects
on re-offending and employment found that for the vast
majority of defendants, the costs of pretrial detention at
current levels outweigh the benefits (Baughman 2017a, 29).12

Solutions for Safely Reducing Rural Pretrial
Incarceration

In addressing high rates of pretrial incarceration, which
are most pronounced in rural areas, the threshold place
to begin is to determine which defendants should even be
arriving at jail. This translates to first focusing on reducing
unnecessary arrests and jail admissions.

Reduce Number of Offenses Carrying the Potential
for Arrest and Jail Time

There are simply too many criminal laws, with too many of
them resulting in arrest and jail time. In Texas, for example,
there are more than 1,700 offenses, and all but speeding
(unless above 100 mph) and an open container of alcohol
can result in arrest. This is only state statutory offenses, so it
does not include regulations carrying criminal penalties and
local ordinances. Texans have been arrested for not wearing
a seat belt, an overdue library book, and an illegal commercial sign. Some offenses should be civil matters, while others
that are jailable misdemeanors should be reduced to Class C
misdemeanors that do not carry the possibility of jail time.
Without the possibility of jail time, counsel would not be
required in order to enter a plea, meaning the cases could
be disposed of in the same manner as an ordinary speeding
ticket.

Expand Use of Police Diversion

Police diversion represents an opportunity to identify
individuals who may not need to be brought to jail. There
are many forms of police diversion, which can include a
specially trained police officer defusing a call regarding a
disruptive mentally ill individual, the referral of a person
to a civil process for drug or mental health treatment, and
referral of a dispute to mediation.

May 2018

of savings on jail and emergency room costs, an evaluation
study “indicated that the odds of at least one nonwarrant-related arrest among LEAD participants were 34% lower than those of control participants” (Collins et al. 2015a,
17). Collins et al. observe that LEAD reduced recidivism
among participants by 22 percentage points when compared
to the control group which went through the traditional
criminal justice process (21).
Additionally, LEAD participants’ judicial costs were reduced by $2,100 from their pre-evaluation entry, compared
to the control group participants which showed an overall
$5,961 increase in cost (Collins et al. 2015b, 2). Further,
LEAD group participants saw 1.4 fewer jail bookings per
person per year, 39 fewer days in jail per person per year, 87
percent lower odds of having at least one prison sentence
post-evaluation, and a significant reduction in the number of felony cases per year. While LEAD began in Seattle,
Colorado lawmakers appropriated funds in 2017 for LEADtype pilot programs in four jurisdictions, including two in
lesser populated areas: Alamosa, with approximately 10,000
people, and Longmont with about 93,000 people (CDHS).
Even after arrest, there are options for police diversion from
jail. New York City has been using desk appearance tickets
since 1964 in lieu of bringing certain misdemeanant defendants to jail. Instead, police officers have the discretion to
bring the person to the nearby police precinct office where
they determine the arrestee’s eligibility for a desk appearance ticket. Individuals are ineligible if, for example, their
identification cannot be verified; they have outstanding or
prior warrants; they are on parole or probation; or they are
a recidivist. In 2012, nearly 80,000 desk appearance tickets were issued for offenses such as marijuana possession,
driving with a suspended license, petty theft, and city code
offenses (Phillips 2014, 5). If the arraignment was scheduled
within 15 days of the arrest, the failure-to-appear rate was
only 4 percent, which increased to a still modest 13 percent
for arraignments within 16 to 30 days. Of course, warrants
are ultimately issued for no-shows.

One promising program is the Seattle Law Enforcement Assisted Diversion (LEAD) initiative which has now expanded
to other jurisdictions. Through this program, police refer
some individuals they apprehend for drug and prostitution
offenses to a case manager who connects them to treatment
and other services, including emergency housing for the
many who are homeless. In addition to resulting in millions

In Lubbock, Texas, police are able to refer appropriate
cases to a mediation office within the court system that has
achieved successful outcomes in nearly 90 percent of cases.
A victim of a minor theft, for example, is much more likely
to get an apology and restitution through this option than
through protracted formal proceedings. Such programs typically focus on first-time offenders who are willing to take
responsibility for their actions.

12	 These types of cost-benefit analyses necessarily involve assigning numerical values to the costs of various types of crime. While this is done in a variety
of contexts, including by insurers, these kinds of calculations inevitably involve
elements that are both objective and subjective, such as pain and suffering.

Another example of police diversion is the use of citations,
which can be either criminal or civil. In 2007, Texas enacted a cite and summons law, which the Texas Public Policy

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

Foundation developed in collaboration with other advocates
and groups, including the Combined Law Enforcement
Association of Texas (CLEAT) and the Sheriffs’ Association
of Texas (HB2391 Bill Analysis). Under this statute, police
may issue a citation and summons to appear on a specific date in court to individuals for certain misdemeanor
offenses, including petty theft and possession of four ounces
or less of marijuana. A minority of Texas counties, ranging
from Travis to El Paso and Colorado (a rural county), are
employing this authority, with some such as El Paso and
Dallas, starting only in the last year or two even though
the law took effect in 2007. The International Association
of Chiefs of Police published a 2016 report examining the
research and best practices on cite-and-summons programs
around the country, finding that sound implementation and
utilization of best practices such as automated reminders
are critical to achieving high appearance rates (IACP, 16).

only has a population of 29,000, they had more treatment
resources than most other small towns. However, there are
many examples of rural jurisdictions overcoming barriers to
establish Crisis Intervention Teams (CIT) in which specially
trained police officers are able to defuse many calls involving mentally ill individuals (Skubby et al.). CITs began in
urban areas and among the challenges in rural areas are a
lack of emergency psychiatric beds for those who cannot be
stabilized at the scene, a lack of transportation, and a lack
of officer training. Solutions have included collaboration
among neighboring urban counties, including development
of a system of regional transportation so that the officer is
not taken off duty for many hours, and a commitment to
training a larger percentage of officers than might be needed
in an urban area, since in a small police force, relatively few
total officers may be on duty at any given time (Compton et
al., 8).

Florida has been a pioneer in civil citations. Through this
program, police issue a citation for offenses such as shoplifting and the person must make arrangements to provide
restitution and perform community service. In fiscal year
2011-2012, there were a total of 4,822 offenders released
through the civil citation program. Of those, 3,888 completed the program (Roberts, 2). The recidivism rate for those
who completed the program was 4 percent. The financial
savings for the Florida Civil Citation Program have been
impressive as well. It is estimated to cost on average $5,000
to process a youth through the criminal justice system,
compared to $386 per youth for the Civil Citation Program
(Bishop et al., 1).

While different from the desk citation program in New York
City, because it is not a diversion program in the sense that
it does not resolve the case, Illinois has for years empowered
police officers with significant authority to avoid bringing
the arrestee to jail. Under Illinois law, police officers often
take arrestees to the police station where they can release
them on their own recognizance for virtually all misdemeanors other than domestic violence cases, as well as
ordinance violations and regulatory offenses such as violations of hunting laws. The officer exercises his discretion to
determine whether the person is likely to show up for court
and is not a danger to the community. In addition to the
officer’s authority to release arrestees on their own recognizance, the officer may accept a cash deposit bond according
to a schedule set by the court pursuant to 725 ILCS 5/110-7
or 725 ILCS 5/110-8 of the Illinois Code (Chicago Police
Department). The amounts are low, ranging from $120 to
$3,000, with the vast majority of offenses, and all non-traffic
misdemeanors, at $1,500 or less. The officer furnishes the
arrestee with a receipt, deposits the funds with the court,
and the defendant receives the money back upon re-appearing as required to resolve the case.

In 2015, the police department in Gloucester, Massachusetts, a city which—with a population of about 29,000—
qualifies as a small town, began an innovative police-led
treatment initiative focusing on those with severe opioid
addiction. Called the Angel Program, it enables individuals
suffering from overdoses and other manifestations of addiction to voluntarily seek help from the police who place them
in a detoxification or treatment program without the threat
of criminal charges. Not only does the officer collect information on the individual and match them with a treatment
center, but the officer also provides transportation, including an ambulance if necessary. Volunteer good Samaritans
are also assigned to those participants who need emotional
support. To provide a sense of the population the program
has been serving, some 82 percent had a prior detoxification
episode and the average age at which participants began
abusing drugs was 15 (Schiff, 15).
Undoubtedly, some of the high-profile examples of police
diversion such as New York City’s desk appearance program come from major urban areas. Though Gloucester

Randy Petersen, who spent 21 years with the Bloomingdale
Police Department (Illinois), says that this authority was
helpful in allowing officers to get back on the street and that
in most cases as an officer in Illinois he and his colleagues
released defendants on their own recognizance (Randy Petersen interview). Petersen said they did not decide to bring
someone eligible for police station release to jail unless they
had a separate outstanding warrant, posed a danger to the
community, or were viewed as likely to flee. Illinois does not
have commercial bail and in 2017 passed a law creating a
presumption against money bail in cases involving low-level

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

defendants (Illinois Bail Reform Act). While bail schedules used by courts are often problematic, the use by these
officers is different for several reasons, including the low
amounts; the fact that the officers still release defendants
on their own recognizance if they cannot pay so long as
it is consistent with public safety; and absent the judicial
imprimatur in creating the schedule, the officer would not
have the legal authority to make a more individualized
determination, which of course the defendant would still be
entitled to as a matter of due process if brought to jail.
Some states such as Texas and Colorado also have
state-funded programs to provide rural areas with emergency transportation service to bring to residential treatment
severely mentally ill people apprehended by law enforcement who are a danger to themselves or others. Additionally, some police departments are now responding to calls
involving severely mentally ill people with a trained clinician in the car, which has been demonstrated to result in a
significantly higher number of incidents being successfully
defused without the need for an arrest (Shapiro et al., 3).
While it awaits formal evaluation, a pilot program of the
Harris County Sheriff that could be especially promising
for rural areas involves including the clinician participating
remotely through the use of an iPad (Ramsey).

Create Presumption of Recognizance Release
As noted above, the concept of innocent until proven guilty
seems to have become lost in many instances when it comes
to pretrial incarceration. But not everywhere.
New York City has demonstrated that recognizance release
can be effectively used in a high number of cases, far more
than the 14 percent nationally. Cases where very low bail
amounts are set likely involve a relatively minor charge
given the role of the seriousness of offense in current bail
determinations and a low level of risk if risk was assessed,
but the prevalence of low bail nevertheless not being attainable indicates that a presumption of recognizance release
could make a significant difference. This should be adopted.
In addition, the burden should be on the state to prove, in
an adversarial proceeding where the accused is present,
that the need for conditions of release or denial of bail has
overcome the presumption.
In many jurisdictions, the use of pretrial supervision is
increasing. While this is appropriate in some cases, it should
not be the first option. If after an individual consideration,
a court finds that conditions of release are warranted, the
conditions should be the least restrictive to ensure public
safety and appearance at trial.
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May 2018

In light of challenges in some jurisdictions such as Kentucky, where courts often disregard such a presumption in
existing law, policymakers should consider requiring that
courts enter findings indicating why recognizance release
is not sufficient, and conditions, financial or otherwise, are
necessary for a low-risk defendant. Greater use of recognizance release for low-risk defendants can ensure that
limited pretrial supervision resources can be focused on
those who otherwise would have a substantial chance of
being re-arrested.

Promptly Administer Risk Assessment Upon Intake

In Texas, only 25 of 254 counties report assessing pretrial
risk, and only 6 of those as of 2017 reported using a validated instrument that can reliably predict defendants’ risk
of flight and threat to public safety (Carmichael et al., xv).
However, in early 2018, the Texas Supreme Court rolled out
a framework for a statewide pretrial risk assessment that
does not require an interview, which they are piloting in
Dallas County, and will eventually be available electronically throughout the state (Griffith). In largely rural DeKalb
County, Illinois, all defendants are assessed by the pretrial
department prior to first appearance, using the revised
Virginia Pretrial Risk Assessment Instrument and 70 to 80
percent are ultimately released on unsecured bond, with the
remaining either detained prior to trial or required to post
funds with the county (Venditti).
With advances in research, it has been demonstrated that an
assessment without an interview can be equally effective for
determining risk of failure to appear, risk of re-arrest, and
risk of re-arrest for a violent offense, just as longer assessments requiring an interview can—which often address
factors such as employment that are more tied to socioeconomic status (Arnold Foundation 2014, 2). Since such
assessments rely on existing data, they can be conducted in
five minutes. The factors incorporated in one such assessment—the Public Safety Assessment promulgated by the
Laura and John Arnold Foundation, which has been adopted in some form by dozens of jurisdictions—are as follows,
with “FTA” denoting Failure to Appear, “NCA” denoting
New Crime Arrest, and “NCVA” denoting New Violent
Crime Arrest (see chart) (Arnold Foundation 2016, 2).
Of course, training is necessary for those personnel administering the assessment and jurisdictions that use such
assessments to inform human decision-making, so that
an algorithm alone does not dictate the final outcome.
Additionally, while some critics of risk assessments argue
they are racially biased, an analysis of the Kentucky pretrial assessment found that largely similar percentages of all
races fell into each of the risk levels (PJI 2018). Likewise,
a comprehensive review of the academic literature across
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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

criminal justice and other disciplines by the National
Institute of Corrections found that actuarial assessments
result in more accurate decision-making than relying solely
on professional judgment, including reducing the chance
that race or other extra-judicial factors will influence the
decision (Thompson, 2). Nonetheless, given the evidence of
similar drug use levels among all races but widely different
rates of conviction for drug possession based on policing
patterns and methods of obtaining drugs, jurisdictions
could choose to simply exclude drug possession cases from
the prior-offense history factor.

high-risk defendants without bail. Many states have constitutional provisions that sharply limit the cases in which
a person can be denied bail, often referred to as preventive
detention. In Texas, for example, the Constitution specifies that bail can only be denied in cases involving capital
murder and certain domestic violence cases. In states with
such limitations, efforts to address rural pretrial incarceration can take two different paths, depending on whether a
constitutional amendment such as the ones recently enacted
in New Jersey and New Mexico is attainable.

With a preventive detention net that is sufficient to ensure
In 2017, Nueces County, Texas, implemented the use of
public safety but also limited and subject to due process,
a pretrial risk assessment combined with two additioncourts will no longer feel compelled in cases involving the
al staff positions to administer the assessment and make
most dangerous to set extremely high bail amounts for
recommendations to the court. Two documents provide a
the purpose of ensuring detention. Jurisdictions that use
summary of the steps taken to operationalize this, including financial conditions would then be able to focus on the conhow challenges, such as accomplishing tasks on weekends,
stitutional considerations outlined at the beginning of this
have been overcome, as well as the assessment itself and the paper. If, however, courts lack the legal authority to deny
forms used to process cases (Nueces County Pretrial Risk
bail to those who pose a serious public safety danger, the
Assessment; Nueces County Jail Population Assessment).
only alternative to ensure they remain in jail is by setting
Since the pilot program began in 2017, the jail population
bail high enough such that they cannot afford to post it. The
has fallen substantially, and the county is no longer looking
imprecision involved in doing this necessarily means that
at the prospect of building a new jail that could cost $80 to
the system will have some level of inequality, since some
$100 million.
dangerous defendants with significant resources will likely
be able to come up with 10 percent of whatever the high
Revise State Bail Laws, Including the Option of
amount is. Nonetheless, even those rural areas in states
Preventive Detention
where bail cannot simply be denied in all of those cases in
States can take two sensible paths on bail laws, depending
which that is the right decision, can take many steps outon whether there is an adequate mechanism for detaining
lined below such as moving away from rigid bail schedules
and expanding alternative forms of
RELATIONSHIP BETWEEN RISK FACTORS AND PRETRIAL OUTCOMES
release to ensure that the larger group of
Risk Factor
FTA
NCA* NVCA*
defendants who do not pose a significant
risk to the public do not languish in jail
1. Age at current arrest
X
simply because of a lack of funds.
2. Current violent offense

Current violent offense & 2 years old or younger
3. Pending charge at the time of the offense

X

4. Prior misdemeanor conviction
5. Prior felony conviction
Prior conviction (misdemeanor or felony)

X

6. Prior violent conviction
7. Prior failure to appear in the past two years
8. Prior failure to appear older than two years
9. Prior sentence to incarceration

X
X
X

X
X

X
X

X
X
X

X
X
X

X

Note: Boxes where an “X” occurs indicate that the presence of a risk factor increases the
likelihood of that outcome for a given defendant.
Source: Arnold Foundation. 2016, 2. “Public Safety Assessment; Risk Factors and
Formula.”
*NCA stands for “new criminal activity,” and NCVA stands for “new violent criminal activity.”

To take the most comprehensive path of
reform, in many states a constitutional amendment is necessary to provide
judges the discretion to hold the most
dangerous defendants without bail.
Our constitutional traditions that are
anchored in the belief that liberty is the
default choice require that preventive
detention be sharply limited, so it is the
exception not the norm.
The National Center for State Courts
has published a paper outlining how to
ensure that the net is properly limited
(NCSC). Based on U.S. v. Salerno, the
report notes that these safeguards should
include:

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

1.	 An adversarial hearing within a reasonably short time
after arrest,
2.	 The right to counsel as an essential element of an adversarial proceeding,
3.	 A judicial finding of clear and convincing evidence that
no conditions of release could provide reasonable assurance of public safety,
4.	 Pretrial detention orders that clearly state the specific
reasons for detention,
5.	 An opportunity for appeal or review of the detention
order, and
6.	 Strict adherence to the jurisdiction’s speedy trial requirement.
Another requirement to add to this list is that there should
be clear and convincing evidence, not just probable cause,
that the defendant is guilty of a crime. Such evidence should
be primarily established through information which law
enforcement has already gathered about the instant charge,
but it also could appropriately be bolstered by a record of
any prior similar convictions even if they would not be
admissible at trial. This can help ensure that defendants
who are actually innocent are not denied bail. While no
one should be denied pretrial release solely on the basis of
an assessment instrument, the requirement that there be a
judicial finding that no conditions of release could provide
reasonable assurance of public safety should be informed by
the use of an objective assessment. Ideally, the assessment
should indicate not just the general risk of the person committing a new offense, but also the specific risk of a serious
violent offense.
The District of Columbia, which in 1970 became the first jurisdiction in the U.S. to establish a preventive detention statute, incorporates both the seriousness of the charged offense
and the weight of the evidence that the defendant is guilty
in its criteria which the court should consider in determining a defendant’s dangerousness (District of Columbia
Code). These enumerated factors are violent and dangerous
nature of the crime, weight of the evidence against the defendant, defendant’s personal character and history (including community involvement, physical and mental health,
substance abuse, financial resources), past failures to appear,
criminal history, probation or parole status, and seriousness
of the danger to others if the defendant is released.
It is critical that preventive detention be limited to cases involving a serious public safety risk, though flight risk should
be considered to the extent that a defendant who flees
would negate the effect of conditions designed to address
the public safety risk. For example, a mentally ill defendant charged with assault who absconds would not benefit
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May 2018

from mandatory treatment. On the other hand, a homeless
defendant in a minor marijuana case with no prior record
may be a high risk of flight, but they are not dangerous,
so preventive detention should be off the table. Therefore,
while a high level of dangerousness must be a prerequisite
to preventive detention, a high risk of flight that cannot
be otherwise addressed exacerbates a defendant’s level of
public safety risk.

Exercise Prosecutorial and Judicial Discretion
Regarding Use of Financial Conditions and Pretrial
Diversion Toward Mental Health and Drug Treatment Alternatives

While legislation and even constitutional provisions can
alter the statewide framework in areas such as what type of
conduct is criminalized and leads to arrest, rural jurisdictions, like their suburban and urban counterparts, need not
idly wait for changes in state law or, perhaps, for a lawsuit
challenging their pretrial practices. Instead, many local district attorneys and governments are taking steps to ensure
the availability of non-financial forms of release in certain
cases, such as misdemeanors and/or nonviolent offenses
(McKinley; Cramer).
In some 48 states there are general statutes on pretrial
diversion giving authority to prosecutors and judges to act,
and some states also have specific diversion statutes on subgroups such as those charged with hot checks or veterans
(NCSL 2017). By identifying suitable defendants for pretrial
diversion very soon after incarceration, these defendants
will be far more likely to accept the offer, as opposed to jail
or prison time, since their employment, familial, and housing connections will be more intact in many cases, and they
will have accumulated less jail credit.
Harris County has taken this approach in the last few years
through close collaboration between the district attorney,
probation director, and sheriff to screen defendants arrested
in state jail felony cases charged with possession of less than
a gram of drugs and immediately offer them pure diversion
(dismissal if they complete required treatment) or deferred
adjudication with the same course of treatment and supervision tailored to risk and need level if a repeat offense. For
these first-time, low-level possession cases, pretrial diversion program participants were 50 percent less likely to be
re-arrested than defendants who declined the offer, which
resulted in serving time in the local jail, state jail, or obtaining dismissal of their case (Joplin et al.). For those repeat
offenders who were also quickly steered into deferred adjudication with treatment, who did not take supervision, a 36
percent reduction in re-arrest rates was achieved. Similarly,
Harris County has reported considerable success with
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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

reducing both recidivism and jail utilization through its
new diversion program for defendants with mental illness
(THHSC, 1).
Given the earlier discussion regarding the high toll of
opioids in many rural areas, it is notable that considerable
research supports the diversion of those arrested for opioid possession, including those suffering from overdoses.
Studies suggest that, while naloxone is often necessary to
reverse an overdose, it is important to immediately segue
the person into sustained treatment to avoid further abuse
of opioids and additional overdoses (NIH; Rinaldo and
Rinaldo, 11; President’s Commission, 77-79). Additionally,
the best results have been attained when medication-assisted treatment (MAT) is not used alone, but rather combined
with psychosocial counseling and accountability mechanisms such as drug testing and drug courts (SAMHSA).
Examples of non-urban jurisdictions implementing MAT
include Yamhill County, Oregon, where the head of the
pretrial services program noted: “Opioid addiction drives
an individual’s behavior which could be the difference of
attending a court appearance or continuing drug-seeking
behavior” (Evenson).
Additionally, unique challenges and solutions for establishing and sustaining successful rural drug courts, including
tribal drug courts, have been identified—demonstrating
how jurisdictions have overcome obstacles such as lack of
transportation (American University). Finally, some jurisdictions have sought to relieve the strain on jails associated
with opioid-related arrests by creating detoxification centers, many of which also serve those with other addictions
(Hayashida, 44; Nosyk et al., 6). A similar jail diversionary
approach for alcohol-related offenses such as public intoxication has involved sobering centers (Smith-Bernardin, 2).
Regardless of the type of treatment and accountability
mechanism that are utilized, the priority in the pretrial context must be rapid screening so that the defendant does not
languish in jail, particularly given that most jails, because
they are designed as short-term holding facilities, have limited treatment options, and severely mentally ill individuals
often decompensate, endangering themselves, other detainees, and staff (Armour, 887; Galanek, 15). Moreover, while
treatment programs and drug courts typically also serve
post-adjudication participants, pretrial diversion is not only
valuable because it can result in much more rapid placement, but also because it is more likely to result in the person not having a criminal record at the end of the process if
they fully comply. Conversely, once a person is adjudicated
and convicted, while there may be limited options in some
states for sealing records in a small share of cases, there is an
inherent policy and practical challenge in making it as if the

conviction had not happened, as opposed to whether there
truly never was a conviction.
Early prosecutorial screening of cases is also important to
expeditiously identify cases in which there is not sufficient
evidence to proceed. If a defendant remains in jail for a
substantial period based only on the officer’s probable cause
affidavit, that means no one with legal training has independently verified that the four corners of the document are
sufficient to allege a crime. For this reason, some jurisdictions have a prosecutor on duty 24/7 to screen cases, including New Jersey which made this practice statewide in 2016
(OAG, 18). With regard to judges, the Fifth Circuit pointed
out that they have an obligation to make an individualized
bail determination, including inquiring into the defendant’s
financial circumstances (O’Donnell v Harris County 2018a).
This paper has focused on reducing the number of incidents
of unnecessary and even counterproductive pretrial detention. For those who are detained prior to trial, jurisdictions
can reduce the length of pretrial stay—regardless of whether
the defendant is ultimately convicted and sent to state prison—by complying with constitutional and statutory speedy
trial requirements (Conway).
In Harris County, the county criminal justice coordinator
encourages courts to prioritize those cases involving defendants jailed up until their trial by circulating weekly lists
to the judges of cases before them in which the defendant
has been in jail for a significant period. However, delays
in the resolution of a case are a result of gamesmanship by
both sides. In DeKalb County, Illinois, which has just over
100,000 people and a county seat with a population of about
17,000 people, the supervisor of pretrial services Michael
Venditti cited the “increasing time it takes for an incarcerated person to reach disposition” as the biggest problem. He
noted that “larger dockets and prosecutor/defense strategies
involving waiting out the time the defendant could serve to
get a better plea have resulted in many cases of defendants
being incarcerated longer than they could be sentenced to
upon conviction” (1).

Curtail Use of Bail Schedules and Adjust Bail
Amounts When Financial Release Is Used, Based on
the Presumption of Release
Bail schedules set by courts and counties typically list a
standard bail amount of each category or type of offense.
There is no research that would demonstrate whether
bail schedules are more common or have higher average amounts in rural areas. However, a review of bail
schedules in Nebraska found wide disparities in districts
across the state in the bail schedule amounts for the same
offense categories. For example, the bail schedule in the

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

Fifth Judicial District (rural Saunders, Seward, Platte, and
Hamilton counties) sets bail at $10,000 for Class I offenses;
whereas it is $5,000 in the Fourth Judicial District (which
subsumes Omaha in urban Douglas County) (ACLU, 19).
Bail schedules, by definition, do not provide the type of individualized consideration that due process requires. Given
that the vast majority of defendants do not have thousands
of dollars in savings, bail schedules also assume commercial
bail is the appropriate form of release for most defendants.
Since bail schedules typically rely solely on the offense, they
also may enable someone arrested for a relatively minor
offense who poses a very high public safety risk—such as
someone formerly convicted of homicide or rape—with factors indicating a risk of committing another serious crime
to be released without any supervision.
Bail schedules proliferated at a time when risk assessments
that do not require an interview were not yet available, and
many jurisdictions lacked the personnel otherwise needed
to evaluate a defendant’s risk of flight and re-arrest. Now,
however, given the availability of such assessments and the
move toward a presumption of non-financial release for
defendants with the least serious offenses and at the lowest
end of the risk spectrum, whatever practical rationales for
bail schedules that may have existed are no longer salient.
A 2007 Bureau of Justice Statistics study found 7 in 10
defendants secured release when bail was set at less than
$5,000, but only 1 in 10 when bail was set at $100,000 or
more (Cohen and Reaves, 1). Thus, the amount at which
bail is set often determines whether the defendant obtains
release prior to trial. Nationally, less than 25 percent of
felony defendants are released without financial conditions,
and the average bail for a typical felony defendant exceeds
$55,000 (Reaves, 19). Additionally, research shows the typical defendant earned less than $7,000 in the year prior to
arrest, so it is not surprising that less than half of defendants
are able to post bail even when it is set at $5,000 or less
(Dobbie et al. 2017, 1).
In a review of data in Wisconsin, Measures for Justice found
that 33 percent of pretrial detainees were being held on a
bail amount of less than $500 (Measures for Justice). The
counties where this rate exceeded 50 percent were all rural
counties: Grant, Burnett, Sawyer, Monroe, Rock, Green,
Iowa, and Pierce. A 2018 study of upstate counties in New
York, many of which are rural, also found that pretrial detention was ubiquitous for low-bail defendants. Of the more
than 90,000 pretrial detainees in these upstate New York
counties who spent at least one night behind bars after bail
was set, 40 percent (35,679 people) had a bail of $1,000 or
less and 24 percent (21,833 people) had a bail of $500 or less
26	

May 2018

(NYCLU, 5). Some 60 percent of individuals held on bail
in these counties were charged with only a misdemeanor
or violation. The three most common misdemeanors were
drug possession, petty theft under $1,000, and criminal
contempt (showing a lack of respect in the courtroom). The
three most common violations were disorderly conduct, harassment, and trespass. Under state law, the maximum fine
for violations is $250, but the bail amount set exceeded that
in 41 percent of cases. Assuming these pretrial detainees
would have only had to pay 10 percent of the bail amount to
a bondsman to obtain release, these are people who could
not come up with between $25 and $100.
For those jurisdictions that nonetheless continue to use
bail schedules, perhaps prior to such time that they have
the necessary personnel to quickly screen defendants, they
should seek to limit the degree to which equal protection is
jeopardized by ensuring that an immediate bail reduction
hearing is available for those defendants who cannot meet
the amount in the schedule. The same can be done for those
who are ineligible for bail at all under many counties’ bail
schedules, such as individuals charged with technical probation violations (Ad Hoc Committee on Bail and Pretrial
Services, 14).
Jurisdictions can remedy this problem through ensuring
that the defendant’s financial circumstances are immediately
evaluated and taken into account and creating a presumption of non-financial release and/or recognizance release
in cases involving low-risk and nonviolent defendants
(Ad Hoc Committee on Bail and Pretrial Services). While
lowering their bail amounts, such as through bail reduction
hearings, may be worth pursuing in jurisdictions that rely
primarily on money bail, this strategy could bear limited
fruit given the high number of defendants being detained
on already low bail amounts and that a large share of defendants have minimal or no assets. Moreover, if the jurisdiction is dependent on commercial bail, bail bondsmen note
that they have transactional and insurance costs that often
mean it is not worthwhile to write bonds, especially those of
$500 or less, where the premium would be very low (Boyer
2014).

Explore Use of Pretrial Services and Supervision,
Including Regional and Nonprofit Options, for Defendants After Due Process Hearing Demonstrates
Recognizance Release Without Conditions is Inadequate to Address Flight and Public Safety Risk
Jurisdictions should explore a range of methods for providing pretrial supervision, but only for a discrete group of
defendants who, based on an assessment and after the due
process of an adversarial hearing with representation, have

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

been determined unsuitable for recognizance release. There
are a wide range of models for providing pretrial supervision and services that some rural areas utilize (Clark and
Vetter, 17):

minimum supervision, $2.64 for medium supervision, and
$5.02 for maximum supervision. In contrast, jail stays in
Summit County in 2016 were more than $133 per day (Ad
Hoc Committee on Bail and Pretrial Services, 19).

•	

One example of a rural county that addressed these challenges is St. Mary’s County in Maryland. In this jurisdiction,
the sheriff launched a pretrial services program in 2015
which incorporates both GPS monitoring for some participants as well as a vocational component. The county says
it costs $29 a day compared to $149 a day for the jail, and
that the jail, where the pretrial share of the population has
declined to one-third, would otherwise have another wing
in operation if the 45 defendants were not in the pretrial supervision program (Dresser 2017). While the program has
not yet been subjected to an academic evaluation, the sheriff
reports that 99 percent of defendants who have participated
have shown up, and 92 percent have not been re-arrested.
Participants have included an addicted, pregnant woman
facing drug distribution charges who was on a high supervision level with drug testing and medication-assisted
treatment and an indigent man in his early 20s who was
arrested for driving with a suspended license who was
placed on the lowest level of supervision. This latter participant received court reminders and enrolled in an insulation
apprenticeship. One advantage of funding coming through
the budget for the existing Sheriff ’s office, as is the case in
St. Mary’s County, is that county executives and the public
can easily evaluate the net budgetary effect of the program,
verifying that its cost is more than paid for through savings
on jail beds.

•	
•	
•	
•	
•	

Relying on the existing probation department, which is
equipped to provide supervision, given that they oversee individuals who have been adjudicated;
A pretrial office within the court system;
A pretrial office within the sheriff ’s department;
A nonprofit entity;
A multi-county entity;
A statewide entity.

Creating a pretrial supervision capacity does not necessarily
require creating a new government agency, especially in
very lightly populated areas. In areas where police officers
are assigned to certain neighborhoods or geographic areas,
it may be possible to involve them in enforcing certain
pretrial supervision conditions, such as a curfew, without
unduly interfering with their existing responsibilities. In
cases where the primary condition is participating in mental health or drug treatment, it may also be possible for the
treatment provider to simply regularly report to the court
through an existing assistant to the judge as to whether the
defendant is participating. With advances in case management software platforms, it would be easy for the court
assistant to simply receive an alert if the defendant is not
faithfully continuing their treatment, or even to read any
notes entered by the treatment provider. As jurisdictions,
especially rural ones, scale up their pretrial supervision capabilities, they should consider such potential synergies that
maximize existing resources.
Notable examples come from Kentucky and Maine, two
states that are overwhelmingly rural. Kentucky established
a statewide pretrial services program in 1976 under the
state’s Administrative Office of the Court. Since then, the
state has been a leader in the implementation of a validated,
statewide risk assessment instrument. In Maine, a nonprofit entity called Maine Pretrial Services has operated since
1983, providing assessment and supervision services by
contract with ten mostly rural counties. They use an assessment based on Virginia’s statewide assessment. In fiscal year
2017, failure to appear rates ranged from 2 percent in Lincoln County to 7.2 percent in Androscoggin County (Maine
Administrative Office of the Courts).
Similarly, Summit County, Ohio, also uses an assessment based on the Virginia model and contracts with the
nonprofit organization Oriana House to provide pretrial
services, which in 2016 cost $1.32 per day per defendant on

Expedite Provision of Counsel to Indigent Defendants

The lack of legal representation is a major challenge, particularly in rural areas. The role of defense attorneys is critical
in bringing facts to the court’s attention that may justify
pretrial release without financial conditions or with a bail
amount the defendant can afford. Furthermore, for those
defendants who ultimately get out of jail by entering a plea
to time served, that cannot legally occur until the defendant
speaks with a lawyer, since a line of Supreme Court decisions requires this defendants be afforded the opportunity
to consult with an attorney before entering a plea. Unfortunately, rural areas face the most difficulty in providing
counsel. For example, some 11 counties in Nebraska do not
have a single attorney other than the elected prosecutor
(Gerlock). One way Nebraska has sought to address this
is by creating a career path program modeled after one for
medicine through which college freshmen typically from
rural areas wishing to practice law there can receive pre-law

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

programming and guaranteed admission to the University
of Nebraska Law School (Laird).
While costs must always factor into policymaking, courts
have established the right to counsel as a rare “positive
right” in a Constitution that is otherwise full of primarily
“negative rights.” A 2010 Cato Institute report noted that
“of all the services that governments provide to the poor,
[indigent defense] is arguably the one most defensible on
libertarian (as well as other) grounds. Judicial proceedings, including the opportunity to present a defense, are an
intrinsic part of a broader service that government provides to the public as a whole—law enforcement and social
protection” (quoted in Reddy, 1). Indeed, the report argues
this is “one of government’s most basic tasks, and indeed is
typically seen as the primary raison d’etre of the state.”
Legal representation at the time pretrial release decisions
are made, including setting of financial and other conditions, may reduce the likelihood of the setting of higher
bond amounts which increase the odds of pretrial detention, and moreover, such a policy may not have any
detrimental effect on crime rates (Carmichael and Voloudakis, 21).
The Lawyers at Bail Project demonstrated this connection
by randomly assigning lawyers to 300 bond hearings for
non-violent defendants and comparing those to similar
defendants in the control group (Colbert et al., 1720).
Researchers examined the “number and nature of the
charges, criminal history, nature of the defendant’s ties to
the community, demographic characteristics, whether bail
was given, and if it was, the amount at which bail was set”
(Levin, Marc 2015, 3).
They found that only 13 percent of suspects without lawyers at the bond hearing were released on their own recognizance, but 34 percent of those suspects who did have
counsel were released (Colbert et al., 1753). Furthermore,
defendants who had counsel had their average bail set at
approximately $600 less. Lastly, the median time spent in
jail for suspects without counsel was nine days, compared
with two days for those with counsel.
Additionally, Colbert’s research teams, who interviewed
each of the suspects, found an unquantifiable increase in the
sense of procedural justice. Defendants with representation
were more likely to believe that they had been treated with
respect and that sufficient information, including information favorable to them, was presented.
Miami-Dade County in Florida and King County (Seattle) in Washington state are examples of jurisdictions with
models designed to ensure early representation. In Florida,
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May 2018

a defendant’s first appearance occurs within 24 hours of
arrest at which time the court decides on bail and/or other
pretrial conditions (Sixth Amendment Center, 14). Arraignment, where the defendant is presented with the charges,
does not occur until 21 days later for defendants in jail and
30 days later for those not in custody. Since it is not until
arraignment that the defendant would be determined to be
indigent and assigned counsel, the elected public defender
created an early intervention unit solely dedicated to providing representation from the first appearance through the
arraignment. This representation includes engaging in any
plea negotiations prior to arraignment. Since a defendant
cannot enter into a plea without an attorney, this could result in more rapid resolution of cases, which has the potential for reaping jail savings for the many defendants whose
plea involves diversion, probation, or some other sentence
that does not involve further incarceration.
In King County, the process of delivering early representation is similar, but relies more on the nonprofit sector. Indigent defense is primarily provided through four nonprofits
that contract with the Office of Public Defender Service
(Sixth Amendment Center, 14).13 There is also a panel that
can appoint outside counsel where there is a conflict, such
as multiple defendants or an overload of cases. Counsel is
provided by one of these nonprofit agencies at the time of
the initial appearance at which bail is set and probable cause
is ascertained, if the screenings conducted by the Office
of Public Defender Service staff based in the courtrooms
have determined the defendant is indigent. As in Miami, in
those cases that are not resolved by plea during the initial
representation or involve complex issues requiring specialized knowledge, a different counsel is often subsequently
assigned.
When it comes to non-urban counties, in Dekalb County,
Illinois, all defendants are required to be provided a public
defender at their first appearance if private counsel is not
present, secured, or available (Venditti).
The key to providing counsel earlier in the process without
adding to the total cost of the system is to reduce the number of individuals entering jail who qualify for indigent representation. This is important not only for controlling costs,
but also because in many jurisdictions and particularly rural
areas, there is a dearth of attorneys available to handle these
13	 Much of the nonprofits’ legal staff have more recently been moved into
the public defender’s office after a court ruling that they were entitled to
government pensions. This Washington State Supreme Court decision in Dolan
v. King County was persuasively criticized by the Seattle Times editorial board,
which argued that the Court wrote these benefits into contracts between
the organizations and county that did not provide for benefits and that these
attorneys knew when they took positions with the nonprofits that they would
not receive public employee pensions.

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration

responsibilities. Fortunately, by decriminalizing conduct
that should not be a crime, removing jail time as a possible
punishment for conduct that does not implicate public
safety, utilizing police diversion, and employing restorative
justice practices, such as victim-offender mediation (typically done without attorneys in the room) in appropriate
cases, jurisdictions can concentrate limited indigent defense
resources on a smaller number of cases (Levin, Marc 2005).

Promote Family Involvement

Families, as well as other stabilizing figures, such as ministers, are too often excluded from the pretrial process. This
can take many forms, beginning with the confiscation of
cell phones upon arrest, making it difficult for defendants to
contact those who could assist with meeting financial conditions of release and/or provide for needs such as transportation and housing that may be necessary for the defendant
to be deemed a good candidate for certain pretrial diversion
programs. The Constitution Project in a March 2015 paper
also recommended that family members be able to attend
pretrial hearings (Constitution Project, 3). An important
related fact that may not be brought to the attention of the
court without counsel or family present is that, according
to a Connecticut study, defendants who are married are
three to five times less likely to fail to appear (Hedlund and
Cox,12).

Match New Technologies with Defendants

Advancements in technologies hold great promise for keeping track of pretrial defendants and ensuring they show up
for court. These technologies fall into two categories. First,
there are those such as text reminders for court hearings
which have a negligible cost and could sensibly be applied
to virtually all defendants. A University of Chicago study
of New York City defendants found that such text messages reduced failures to appear by 26 percent, with the most
effective incorporating language about the consequences
of arrest for failure to appear, what to expect at court, and
planning the trip (Cooke et al., 4). Examples include:
“Helpful reminder: go to court on Mon, Jun 3 09:30AM.
We’ll text to help you remember. Show up to avoid an
arrest warrant. Reply STOP to end texts.”
“You have court on Mon June 03 at One Centre Street
Manhattan. What time should you leave to get there by
9:30AM? Any other arrangements to make? Write out
your plan.”
While one might think such e-reminders would be
non-controversial, legislation to implement them failed
in the 2018 session in Colorado (HB18-1081). The
Professional Bondsmen of America took credit for defeating

what it called an “anti-bail” bill. (Professional Bondsmen of
America).
An extension of text-reminders are newly developed phone
applications in which the person being supervised is asked
at certain times to answer specific questions instead of going
in person to meet with a pretrial supervision or probation
officer, and the phone verifies their location at the time. Advances in technology are also allowing biometric detection
to be incorporated into phone applications, such as through
verifying the respondent by their fingerprint on the phone.
(McCullom).
Second, there are those such as electronic monitoring, ignition interlock, and continuous alcohol monitoring devices
that involve substantial costs but can be net beneficial when
applied to appropriate defendants. A 2017 study of federal
pretrial defendants in New Jersey found that comparable
defendants on location monitoring devices were more likely
to re-appear and less likely to be arrested, although success
rates on these metrics were well above 90 percent for both
groups (Wolff et al.). Also, while focused on probation
rather than pretrial supervision, a Florida study found that
GPS monitoring dramatically reduced absconding and
new offenses among those on supervision (Padgett et al.).
Similarly, South Dakota has reported impressive results in
supervising defendants with alcoholism through the 24/7
Sobriety Program that relies in part on a skin patch that
continuously monitors alcohol in a defendant’s sweat (Rand
Corporation). However, experts on monitoring technologies wisely emphasize the need to carefully screen those
on pretrial supervision to identify those whose risk level
and prior criminal history warrants this cost that either the
defendant or taxpayers must incur, as well as this intrusion
into privacy (PJI 2012, 9; Gelb). Certain technologies may
be especially useful in rural areas due to long distances that
often separate residents from where courts, pretrial supervision offices, and treatment services are located. These
include telemedicine and driverless cars.

Conclusion

The case for policy changes relating to rural pretrial incarceration is clear. As we have seen, rural areas are diverging
from the rest of the nation, and current policies often result
in suboptimal outcomes for public safety, taxpayers, and
the protection of defendants’ constitutional rights. Legal
scholars have sometimes observed that the Constitution,
however admirable, is not a suicide pact, so perhaps the
happiest conclusion of all is that the holding in Salerno that
pretrial detention should be the exception rather than the
rule is fully aligned with the best research since that time,
demonstrating that it is only beneficial in a small segment
of cases and is counterproductive in many more. Looking

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OPEN ROADS AND OVERFLOWING JAILS: Addressing High Rates of Rural Pretrial Incarceration	

to the future of pretrial release, advances in technology
will likely continue to make it more efficient to ensure that
pretrial defendants appear without the need for detention or
conditions for that purpose, though our traditional commitments to ensuring due process and maximizing liberty
must remain touchstones when taking advantage of technological breakthroughs. A continued focus on pretrial policy
will be on identifying the small percentage of defendants
too dangerous to be released and remediating the risk of
re-arrest for serious offenses among the far greater share of
defendants who do not pose an extreme risk, but are also
not at the lowest end of the spectrum.
For a host of reasons, ranging from limited resources to
dispersed populations, addressing pretrial incarceration
in rural areas is a particularly complex undertaking. Also,
there are many moving parts to implementing changes in a
deliberate manner that produce sustainable results without

30	

May 2018

unintended consequences. For instance, as rural areas
examine these recommendations against the backdrop of
their existing jail populations, they will likely find many
opportunities to improve outcomes. At the same time, they
must balance the need for alternatives to pretrial incarceration, such as treatment for those with addiction and/or
mental illness, with attention to due process informed by
risk assessment to help avoid over-supervising defendants
in the community. Rural areas are hardly monolithic, and
they must calibrate their practices to their own populations,
while keeping them in alignment with their state’s broader
legal framework concerning bail and preventive detention.
Ultimately, as rural communities across the country take
many different paths to addressing the meteoric rise in rural
pretrial incarceration over the last few decades, they must not
lose sight of the destination: a constitutional system that produces greater public safety with less collateral damage. 



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About the Authors
Marc A. Levin is the vice president of criminal justice at the Texas Public Policy Foundation (TPPF)
and Right on Crime.
An attorney and accomplished author on legal and public policy issues, Levin began the
Foundation’s criminal justice program in 2005. This work contributed to nationally praised policy
changes that have been followed by dramatic declines in crime and incarceration in Texas. Building
on this success, in 2010, Levin developed the concept for the Right on Crime initiative, a TPPF project
in partnership with Prison Fellowship and the American Conservative Union Foundation. Right on
Crime has become the national clearinghouse for conservative criminal justice reforms and has
contributed to the adoption of policies in dozens of states that fight crime, support victims, and
protect taxpayers.
In 2014, Levin was named one of the Politico 50 in the magazine’s annual “list of thinkers, doers, and dreamers who really
matter in this age of gridlock and dysfunction.”
Marc has testified on criminal justice policy on four occasions before Congress and has testified before numerous state
legislatures. He also has met personally with leaders such as U.S. presidents, speakers of the House, and the Justice
Committee of the United Kingdom Parliament to share his ideas on criminal justice reform. In 2007, he was honored in
a resolution unanimously passed by the Texas House of Representatives that stated, “Mr. Levin’s intellect is unparalleled
and his research is impeccable.”
Since 2005, Marc has published dozens of policy papers on topics such as sentencing, probation, parole, reentry,
and overcriminalization, which are available on the TPPF website. Levin’s articles on law and public policy have been
featured in publications such as the Wall Street Journal, USA Today, Texas Review of Law & Politics, National Law Journal,
New York Daily News, Jerusalem Post, Toronto Star, Atlanta Journal-Constitution, Philadelphia Inquirer, San Francisco Chronicle,
Washington Times, Los Angeles Daily Journal, Charlotte Observer, Dallas Morning News, Houston Chronicle, Austin AmericanStatesman, San Antonio Express-News and Reason Magazine.
In 1999, Marc graduated with honors from the University of Texas with a B.A. in Plan II Honors and Government. In 2002,
Marc received his J.D. with honors from the University of Texas School of Law. Marc was a Charles G. Koch Summer
Fellow in 1996. He served as a law clerk to Judge Will Garwood on the U.S. Court of Appeals for the Fifth Circuit and staff
attorney at the Texas Supreme Court.

Michael Haugen is a policy analyst in the Center for Effective Justice and its Right on Crime
initiative.
His work for the Foundation has focused primarily on criminal justice reform topics, particularly
civil forfeiture, prison reform and justice reinvestment, mens rea reform, occupational licensing,
and various law enforcement and privacy issues. He’s also written about federal corporate subsidies, school choice, and gun rights.
Haugen is a graduate of Eastern Washington University (EWU), with a Bachelor of Science degree
in biology with pre-medicine option, and a minor in chemistry. He also holds an Associate of Arts
degree in general studies from North Idaho College. At EWU, he participated in academic research in a molecular
microbiology laboratory for two years, investigating genetic virulence factors and pathophysiology in microbes. In
2011, he presented his research before faculty and peers at the Student Research and Creative Works Symposium in
Cheney, Wash.
His writing has appeared in National Review, The Hill, Townhall, Washington Examiner, El Paso Times, TribTalk, Redstate,
Ricochet, and Breitbart Texas.

About Texas Public Policy Foundation

The Texas Public Policy Foundation is a 501(c)3 non-profit, non-partisan research institute. The Foundation’s
mission is to promote and defend liberty, personal responsibility, and free enterprise in Texas and the nation by educating and affecting policymakers and the Texas public policy debate with academically sound
research and outreach.
Funded by thousands of individuals, foundations, and corporations, the Foundation does not accept government funds or contributions to influence the outcomes of its research.
The public is demanding a different direction for their government, and the Texas Public Policy Foundation
is providing the ideas that enable policymakers to chart that new course.

901 Congress Avenue | Austin, Texas 78701 | 512.472.2700 | www.TexasPolicy.com

 

 

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