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Pretrial Practice:
Rethinking the Front End of
the Criminal Justice System
A Report on the Roundtable on Pretrial Practice
March 18–20, 2015

Pretrial Practice:
Rethinking the Front End of
the Criminal Justice System

A Report on the Roundtable on Pretrial Practice
March 18–20, 2015
John Jay College of Criminal Justice
New York City

Acknowledgments
The Prisoner Reentry Institute of John Jay College wishes to thank the Laura and John
Arnold Foundation (LJAF), and especially Anne Milgram, for the opportunity to partner
with LJAF in convening this Roundtable on Pretrial Practice. We appreciated the
close working relationship we had with Erica Gersowitz Bond in the production of the
roundtable, and with Virginia Bersch in the work that has followed.
It was, of course, the energy and diverse voices of the participants that generated the
quality of the exchange that occurred over the three-day meeting in New York City. We
thank each of them for taking time out of their busy lives to join the conversation, and
we thank the many observers whose participation contributed to the event. We note
with special appreciation the facilitation of John Jay President Jeremy Travis who so
ably guided the discussion.
We want to thank PRI staff members Kevin Barnes-Ceeney, Matt Bond, Maja Olesen,
Daonese Johnson-Colon, and Ann Jacobs for their many contributions to this project.
Thanks also to the many John Jay staff members in audio-visual services, facilities
management, security and catering who helped make this event possible.
PRI is also grateful to Graham Kates, a journalist that wrote about the event, and to
the students who participated in the roundtable as note takers: June Adams, Cristina
Castanier, Jennifer Lopez, Sergine Louis, Johana Martinez, Meg Osborn, Sherin Siby,
Sarah Ward, and Lindsay Whetter.
We are particularly indebted to the author of this report, Cynthia Reed, who listened to
recordings of the three-day meeting, and worked diligently to capture the richness of
the conversation that occurred there.
The report was designed by Damian Vallelonga at Echo and production of the report
was coordinated by PRI’s Lila McDowell.

Table of Contents
About The Laura and John Arnold Foundation......................................................................................................................................ii
About The John Jay College of Criminal Justice & The Prisoner Reentry Institute....................................................................iii
Roundtable Discussants...............................................................................................................................................................................iv
Papers Presented.............................................................................................................................................................................................v
Report on the Roundtable on Pretrial Practice | Executive Summary.......................................................................................... 1
Part I | Reviewing the System: Pretrial Practice in the “War on Crime” Era............................................................................... 4
Societal Responses to the Increase in Violent Crime.......................................................................................................... 4
Initial Contact: Police and the Decision to Arrest................................................................................................................ 5
At the Courthouse: How Pretrial Release Decisions are Made......................................................................................... 6
Part II | Refocusing Pretrial Practice and Policy on Human Dignity and Procedural Legitimacy......................................7
Rethinking Pretrial with Dignity in Mind.................................................................................................................................7
Increasing Respect For The Law Through Procedural Legitimacy................................................................................ 9
Part III | Keeping People Out of Jail: Changing How Police View Arrest......................................................................................11
The Hamilton County/Cincinnati, Ohio Case Study...........................................................................................................12
Part IV | Reforming Pretrial Detention: When To Hold The Presumptively Innocent Behind Bars....................................14
Reframing the Bail vs. No Bail Narrative..............................................................................................................................15
Evaluating the Use of Pecuniary Justice............................................................................................................................... 18
Developing Best Practices to Measure and Manage Pretrial Risk...............................................................................19
Part V | A Call For Research: Building a Robust Field of Pretrial Practice Scholarship........................................................ 23
Part VI | The Path Forward: Changing The Narrative....................................................................................................................... 25
Appendix A | Discussants’ Biographies................................................................................................................................................. 26
Endnotes............................................................................................................................................................................................................31

About The Laura and
John Arnold Foundation
Laura and John Arnold established the Laura and John Arnold Foundation in 2008. LJAF believes
philanthropy should be transformational and should seek through innovation to solve persistent
problems in society. Our core objective is to address our nation’s most pressing and persistent
challenges using evidence-based, multi-disciplinary approaches. We strive to create functional
solutions that target the root causes, not just the symptoms, of these problems. The solutions
must be both scalable nationally and sustainable without permanent philanthropy.
Our strategy is to systematically examine areas of society in which underperformance, inefficiency,
concentrated power, lack of information, lack of accountability, lack of transparency, lack of balance
among interests, or other barriers to human progress and achievement exist. We then apply a
rigorous and comprehensive entrepreneurial problem-solving approach to these areas, considering
all possible strategies, tactics, and resource allocations to effect solutions. Our approach is not
limited to what has been tried, or even what has been proposed, in the past. Instead, we seek to
incentivize bold, creative thinking and effort, with the goal of igniting a renaissance of new ideas and
approaches applied to persistent problems.
LJAF’s Criminal Justice initiative aims to reduce crime, increase public safety, and ensure the criminal
justice system operates as fairly and cost-effectively as possible. In order to achieve these goals,
we develop, incubate, and spread innovative solutions to criminal justice challenges. We assemble
teams of experts from both inside and outside the criminal justice field to conduct research
projects, create tools for practitioners, and partner with local jurisdictions to pilot and test new
policies and practices. Our projects use data and technology to drive innovation and accelerate the
adoption of proven reforms.

Laura and John Arnold Foundation
Laura & John Arnold, Co-Chairs
Dennis Calabrese, President
Anne Milgram, J.D., Vice President of Criminal Justice

ii

Houston | New York City | Washington, D.C.
ARNOLDFOUNDATION.ORG

About The Prisoner Reentry Institute
& John Jay College Of Criminal Justice
John Jay College of Criminal Justice of The City University of New York is an international
leader in educating for justice, offering a rich liberal arts and professional studies curriculum to
upwards of 15,000 undergraduate and graduate students from more than 135 nations. In teaching,
scholarship, and research, the College approaches justice as an applied art and science in service
to society and as an ongoing conversation about fundamental human desires for fairness,
equality, and the rule of law.
John Jay is a community of motivated and intellectually committed individuals who explore
justice in its many dimensions. The College’s liberal arts curriculum equips students to pursue
advanced study and meaningful, rewarding careers in the public, private, and non-profit sectors.
Its professional programs introduce students to foundational and newly emerging fields and
prepare them for advancement within their chosen professions.
The Prisoner Reentry Institute (PRI) is one of twelve institutes that collectively comprise the
Research Consortium of John Jay College of Criminal Justice. The mission of PRI is to spur innovation
and improve practice in the field of reentry by advancing knowledge, translating research into
effective policy and service delivery, and fostering effective partnerships between criminal justice
and non-criminal justice disciplines. PRI works towards this mission by focusing its efforts on the
following types of projects and activities:
• Developing, Managing, and Evaluating Innovative Reentry Projects
• Providing Practitioners and Policymakers with Cutting Edge Tools and Expertise
• Promoting Educational Opportunities for Currently and Formerly Incarcerated Individuals as a
Vehicle for Successful Reentry and Reintegration
• Identifying “Pulse Points” and Creating Synergy Across Fields and Disciplines

John Jay College of Criminal Justice Prisoner Reentry Institute
Jeremy Travis, President, John Jay College of Criminal Justice
Ann Jacobs, Director, Prisoner Reentry Institute
New York City
JJAY.CUNY.EDU
JOHNJAYRESEARCH.ORG/PRI

iii

Roundtable Discussants
Dr. Marilyn Chandler Ford
Director, Volusia County Division
of Corrections
Daytona Beach, Florida

Cynthia E. Jones, Professor of Law
American University
Washington College of Law
Washington, D.C.

Timothy R. Schnacke, J.D., LLM
Executive Director
Center for Legal and Evidence-Based Practices
Golden, Colorado

Tim Cadigan
Senior Associate
Chesterfield Associates
Rockville, Maryland

Tara Boh Klute, General Manager
Kentucky Court of Justice,
Administrative Office of the Courts,
Division of Pretrial Services
Frankfort, Kentucky

Dr. Jonathan Simon
Adrian A. Kragen Professor of Law
UC-Berkeley Boalt School of Law
Berkeley, California

Matthew D. Chase
Executive Director
National Association of Counties
Washington, D.C.

Dr. Christopher Lowenkamp
Social Science Analyst
Administrative Office of the U.S. Courts /
University of Missouri-Kansas City

John Choi, J.D.
Ramsey County Attorney
Saint Paul, Minnesota

Dr. Karin Martin
Assistant Professor of Public Management
John Jay College of Criminal Justice
New York, New York

Jeremy Travis, President
John Jay College of Criminal Justice
at the City University of New York
New York, New York

Judge John C. Creuzot
Attorney, The Creuzot Law Firm
Former Texas State District Judge
Dallas, Texas

Anne Milgram, J.D.
Vice President of Criminal Justice
Laura and John Arnold Foundation
Former New Jersey Attorney General
New York, New York

Kevin Tully, J.D.
Public Defender
Mecklenburg County Public Defender Office
Charlotte, North Carolina

Ronald Day, M.P.A.
Associate Vice President
David Rothenberg Center for Public
Policy at the Fortune Society
Long Island City, New York
Dr. Robin S. Engel
Professor of Criminal Justice
University of Cincinnati
Cincinnati, Ohio
Robert D. James, Jr., J.D.
DeKalb County District Attorney
Decatur, Georgia

The Honorable Maryann Moreno
Superior Court Judge
Washington State Superior Court
Spokane, Washington
Tim Murray, Executive Director
Institute for Justice Planning
Director Emeritus, Pretrial Justice Institute
Washington, D.C.
Janice Radovick-Dean
Director, Fifth Judicial District of
Pennsylvania’s Pretrial Services Department
Pittsburgh, Pennsylvania

Chief John Scott Thomson
Chief of Police
Camden County Police Department
Camden, New Jersey

Dr. Tom R. Tyler
Macklin Fleming Professor of Law and
Professor of Psychology
Yale Law School
New Haven, Connecticut
Dr. Marie VanNostrand
Justice Project Manager
Luminosity: Data Driven Justice Solutions
St. Petersburg, Florida
Michael Wilson, Economist
Michael Wilson Consulting
South Easton, Massachusetts

Roundtable on Pretrial Practice Staff
John Jay College of Criminal Justice Prisoner Reentry Institute:
Ann Jacobs
Director

Kevin Barnes-Ceeney, Ph.D.
Director of Research

Matt Bond
Administrative Associate

Laura and John Arnold Foundation:
Virginia Bersch
Deputy Director of National
Implementation, Criminal Justice
iv

Erica Gersowitz Bond
Former Director of Criminal Justice

Maja Olesen
Program Associate

Papers Presented
The following academic papers were presented at
the Roundtable to stimulate and guide discussions:
1. Dr. Jonathan Simon, Professor of Law, UC-Berkeley, “Pretrial Dignity: Rethinking
Pretrial Procedures and Practices as if Dignity Matters” (presented March 18, 2015).
2. Dr. Tom Tyler, Professor of Law and Psychology, Yale Law School, “Legitimacy in
Pretrial” (presented March 18, 2015).
3. Dr. Robin S. Engel, Dr. Nicholas Corsaro, and Annelise Pietenpol, M.P.A., Institute
of Crime Science, University of Cincinnati, “The Role of Police in Pretrial Justice:
Changing How Police View Arrest” (presented by Dr. Engel, March 18, 2015).
4. Timothy R. Schnacke, J.D., LLM, Executive Director, Center for Legal and EvidenceBased Policies, Golden, Colorado, “An Overview of Pretrial Release and Detention in
America: Fixing the Narratives for ‘Bail’ and ‘No Bail’” (presented March 18, 2015).
5. Dr. Karin D. Martin, Assistant Professor of Public Management, John Jay College
of Criminal Justice, “Revenue or Justice: An Inquiry into the Role of Money in
Punishment” (presented March 19, 2015).
6. Dr. Marie VanNostrand and Brian W. Kays, Luminosity, “Leveraging Data and
Analytics to Advance Pretrial Justice” (presented by Dr. VanNostrand, March 19, 2015).
7. Kristin Bechtel, M.S., Dr. Alexander Holsinger, Dr. Christopher T. Lowenkamp, and
Madeline J. Warren, B.A., Administrative Office of the U.S. Courts, “A Meta-Analytic
Review of Pretrial Research: Risk Assessment, Bond Type, and Interventions”
(presented by Dr. Lowenkamp, March 19, 2015).
8. Michael Wilson and Justice System Partners, “A Cost-Benefit Model for Pretrial
Justice” (presented by Mr. Wilson, March 20, 2015)

v

Report On The Roundtable On Pretrial Practice

Executive Summary
From March 18 – 20, 2015, the John Jay College of Criminal Justice, together with the Laura
and John Arnold Foundation (LJAF), brought together a distinguished group of scholars and
practitioners to generate new ways of thinking about pretrial justice. In the words of John Jay
President Jeremy Travis, who chaired the Roundtable, those gathered represented a “national
brain trust on the issues of pretrial policy, philosophy, values, and practice.” The Roundtable
provided an integrated intellectual framework for considering the criminal pretrial stages and
sought to boost momentum for change by expanding the community of academics, practitioners,
and the public who are interested and invested in pretrial reform.
Anne Milgram, the Vice President of Criminal Justice for LJAF, explained the Foundation’s mission
in this area: “Pretrial is a critically important part of the criminal justice system. When we focus
solely on the back end of the system, we miss incredible opportunities to impact change.”
Pretrial, she said, provides “the greatest opportunity to impact the criminal justice system.”
Millions of Americans come in contact with the criminal justice system, a number that grew
substantially as a result of policy shifts brought about by an increase in violent crime between
the late 1960s and the 1990s. As public pressure to combat crime mounted, policymakers
launched what some have termed the “war on crime,” and actors at every stage of the process
heightened their efforts to incapacitate criminals and potential criminals. Police used strategies
like zero tolerance to arrest a growing number of individuals for minor lifestyle crimes. Court
decisions made it easier to hold defendants behind bars pending their trials. Politicians enacted
legislation to extend sentences and enact harsher penalties for a wide range of crimes. The
impact of these decisions was felt most harshly in poor communities and by young men of color.
Jails became overcrowded as part of what some describe as an era of mass incarceration.
But violent crime has been declining steadily and is currently at historically low levels. This
moment presents an opportunity to step back and assess the pretrial stage of the criminal
justice process in a new light, asking hard questions not only about what works in reducing crime,
arrests, pretrial detention, and system costs, but also about what works in increasing fairness,
legitimacy, and dignity.
It is in this spirit that the Roundtable discussants gathered. As President Travis phrased it,
“This is a moment in this field where big change is possible.”
Goals. The goals of the Roundtable were fourfold:
To build the field of pretrial by generating scholarly and popular interest and debate;
To identify what is known and not known about pretrial processes and their results;
To counteract the current “siloed-approach” to the study of pretrial issues and to develop
knowledge and understanding of the interconnected nature of pretrial processes; and
To identify, discuss, and disseminate best practices in the pretrial process.

1

Participants
Discussants spanned many areas of practice, including law enforcement, prosecutors, public
defenders, judges, pretrial services professionals, corrections heads, policy advocates, and
criminal justice consultants, as well as top legal scholars sharing their expertise in the areas of
bail, pretrial risk assessment, racial disparities in justice, corrections, pecuniary justice, evidencebased policing, legitimacy in policing, and the core values of penal justice. Detailed biographies
of the discussants can be found in Appendix A.
The Roundtable was ambitious both in the breadth of its participants and in its goal to
synthesize the typically compartmentalized nature of pretrial practice and research, in which
stakeholders and scholars at each stage of the process conduct debate and research largely
insulated from the work and discussions of those involved in other stages. But the pretrial
process is interconnected and each actor’s role has an impact on the stages that follow. The
Roundtable brought these actors together with the goal to integrate their work in pretrial reform
so that best practices can emerge that not only provide better results at each stage, but better
outcomes for the system as a whole.
The Roundtable embraced both policy and academic discussions and an action-oriented call
for best practices in pretrial based on solidly researched evidence as to what works in reducing
arrests, unnecessary pretrial detention, and system costs. Underlying these discussions was a
commitment not just to finding solutions based in scholarship, but also to holding paramount
the human dignity of those who find themselves navigating the system. Moving forward, the
participants seek momentum to reframe the narrative of criminal justice that grew during the war
on crime, so that the core norms that limit our society’s right to punish again rise as overarching
values that insert themselves into every level of policymaking and practice.
What follows are the bold ideas, the vibrant discussions, the areas of consensus, and the
opportunities for further exploration that came out of the Roundtable and the eight academic
papers prepared for and presented at it.

Part I
Reviewing the System: Pretrial Practice in the “War on Crime” Era provides an overview of the
current pretrial landscape as it has been shaped by the war on crime, with its overriding goal to
incapacitate criminals as efficiently as possible. The section looks at how public pressure to get
“tough on crime” affected pretrial decisions at all stages of the process, from the augmented use
of police practices like zero tolerance, which greatly increased arrests for minor crimes, to judicial
and political decisions that made it easier to detain defendants pretrial.

Part II
Refocusing Pretrial Practice and Policy on Human Dignity and Procedural Legitimacy discusses
the underlying values that, ideally, should govern the penal justice system – proportionality,
parsimony, citizenship, and social justice—and how those values were largely crowded out in
favor of public safety and procedural efficiency. This section focuses on the presentations by
Dr. Jonathan Simon on the opportunity that the decline in crime presents for rethinking pretrial
practice with human dignity at its core, and by Dr. Tom Tyler on how building trust and confidence
in police and the courts works to enhance compliance with the law by improving the public’s view
of pretrial actors as legitimate.

2

Part III
Keeping People Out of Jail: Changing How Police View Arrest focuses on the opportunity to
use law enforcement’s role as the gatekeeper to the criminal justice system to decrease the
number of people who enter it. This section outlines Dr. Robin Engel’s presentation about
exploring alternatives to arrest and illustrates, using the Cincinnati Police Department as a case
study, how law enforcement can use highly focused location-based policing and a wide range of
interventions to reduce arrests and simultaneously reduce crime.

Part IV
Reforming Pretrial Detention: When To Hold The Presumptively Innocent Behind Bars
concentrates on the pretrial release or detention decision and the potential for reforming how
these decisions are made. This section reviews attorney Timothy Schnacke’s presentation on
how the use of secured bonds can result in the unnecessary detention of low-risk defendants
pending trial; Dr. Karin Martin’s presentation on the issues surrounding the rise in monetary
punishment; Dr. Marie VanNostrand’s presentation on the challenges and promises of measuring
and managing pretrial risk using pretrial risk assessments, court reminder notification systems,
and pretrial supervision conditions; and the importance of analyzing system costs, as presented
by economist Michael Wilson.

Part V
A Call For Research: Building a Robust Field of Pretrial Practice Scholarship highlights the
gaps in research into pretrial practices, as underscored by the meta-analysis Dr. Christopher
Lowenkamp presented to the Roundtable. This section calls on the academic community to
engage in study to ensure that the decisions policymakers and practitioners make at every stage
of the pretrial process are based on data-driven evidence that has been rigorously tested and
studied.

Part VI
The Path Forward: Changing the Narrative, we look ahead, with an appeal to change the
conversation surrounding pretrial in light of the historic decline in violent crime rates, so that
a new policy paradigm—one that is focused on human dignity and evidence-based practices—
can arise.
Ultimately, reform in pretrial criminal justice will require a commitment to both best
practices and our best selves.

3

Part I

Reviewing The System:
Pretrial Practice In The
“War On Crime” Era
“The war on crime was a very powerful metaphor,
but we’re not in that moment anymore.”
Dr. Jonathan Simon, Professor of Law, UC-Berkeley

Societal Responses to the Increase in Violent Crime
Between 1968 and the late 1990s, America, “traumatized by a historic confluence of large and
sustained growth in violent crime interspersed with spectacular micro-moments of violence . . .,
committed itself politically to a ‘war on crime.’”1 Policymakers and the public demanded action,
convinced that traditional police strategies and court processes were no match for this new and
dangerous era. “[C]rime was viewed as out of control, policing was perceived to be in crisis and
‘there was a strong sense that fundamental changes were needed.’”2
There arose an era of what some criminologists describe as “moral panic” over violent crime,
which University of California-Berkeley law professor Jonathan Simon, one of the Roundtable
presenters, defined as “the sense that crime is not just threatening our physical or domestic
realm, but essentially threatening our honor, our values, our moral standing as a society.”
Suddenly, every offender was treated as a potential high rate offender. “Many criminologists in
the 1980s and 1990s,” Simon explains, “believed that the arrest pool was inevitably stocked with
many such high rate offenders, but that due process requirements and the provision of criminal
defense allowed too many of the most experienced to escape through ‘technicalities.’”3
And so the criminal justice system sought to achieve crime control through incapacitation. If we
could put enough people behind bars for long enough periods of time, the theory went, “a large
enough scale of imprisonment would reduce American crime.”4

4

This commitment to incapacitating offenders influenced every stage of the criminal justice
process: from initial decisions to stop and search, to arrests, charging, bail setting, plea
agreements, sentencing, and parole policy.5 As part of this ‘tough on crime’ wave, politicians
and courts put in place or upheld more extreme criminal consequences across the spectrum,
expanding the use of life without parole, implementing mandatory minimum sentencing
guidelines, imposing three strikes rules, resuming the death penalty in many jurisdictions, and
eliminating or reducing parole and forms of executive clemency. As Simon explained at the
Roundtable, “Over time, due process became a cog in crime control and the goal of putting
people in prison as quickly and efficiently as possible essentially came to dominate reform in
every area of pretrial, whether it was policing, whether it was bail, jail, [or] the entire apparatus of
prosecution and plea bargaining.”

Initial Contact: Police and the Decision to Arrest
Law enforcement in particular felt pressure from policymakers and the public to respond to the
rise in violent crime. One policing theory that gained traction was the “broken windows” model.
As explained by Tom Tyler, a Roundtable presenter, “Broken windows theory posits that signs of
decline and disorder, whether piles of trash, graffiti, or beggars on the street, encourage more
serious crimes in the future.”6 Clean up the community, the theory suggested, and crime would go
down. Tyler writes: “[T]he model encouraged the police to take proactive steps to prevent major
crimes in the future through curtailing the minor crimes that were their assumed precursors.”7
Ideally, broken windows policing would focus on those in the community whose behavior put
them outside of societal norms. Police would work with community members to identify those
individuals everyone could agree were causing the disorder. Some police departments, however,
extended the original model to include zero tolerance policies. Zero tolerance moved beyond
broken windows and led to widespread arrests for minor crimes like marijuana possession, public
urination, or drinking beer on one’s front steps. Rather than focusing on individuals and behaviors
that were outside the norm, as suggested by broken windows theory, zero tolerance practices
drew ever larger segments of the community into the criminal justice system. Arrests led to jail
detention, payments of fines, and criminal records for larger numbers of residents, who suddenly,
as Tyler writes, “found themselves being excluded from the category of ‘decent people’ and
socially marginalized by the police.”8
This concentration on minor lifestyle crimes required more police presence, which resulted in
more involuntary police contacts with members of the public. Many departments, most notably
the NYPD with its COMPSTAT program, ran crime data to strategically target repeat crime locations.
Hot spots policing offered a focused place-based alternative to generalized random patrols,
allowing police to direct their resources to trouble spots. Increased police presence in these areas
was thought to deter crime but, when combined with zero tolerance policies, hot spots policing
became about more than increased visibility. Law enforcement also increased the use of stop,
question, and frisk techniques as police began to actively search out and question suspicious
individuals on the theory that they might be carrying weapons or drugs. Tyler again explains: “This
policy expanded the scope of proactive policing by including people who were not committing any
crimes or even engaged in overtly suspicious behavior.”9
In New York City, for example, between 2004 and 2012, stop, question, and frisk practices
“produced more than 4.4 million involuntary contacts between the police and members of the
public . . ., most with the members of minority groups, almost none of whom were carrying
weapons or serious drugs. Of these contacts, about one in nine resulted in an arrest or a citation,
and about one in five appear to fall short of constitutional grounds of legal sufficiency.”10
The decision to arrest initiates the pretrial stage and the increased use of arrest as a policing tool
brought millions of individuals into the criminal justice system:
Law enforcement officers in the U.S. arrest approximately 12 million people per year.11
Between 2004 and 2010, total stops increased 92%, total frisks increased by 161%, and arrests
increased 155%.12
An arrest is made in this country every three seconds, for approximately 30,000 arrests per day.13
Between 1980 and 2013, the misdemeanor arrest rate in New York City increased by 190.5%.14

5

The impact of these arrests did not fall equally across the demographic spectrum. Hot spots
policing tended to focus disproportionately on poor, disadvantaged communities and young men
of color. According to Simon, “The new goal, repressing violent crime, produced its own racially
neutral rationale for targeting neighborhoods of high poverty and crime, which were generally
almost 100 percent Black or Black and Hispanic.”15 Professor Cynthia Jones, whose scholarship
focuses on addressing racial disparities in the criminal justice system, noted at the Roundtable
that “[t]oo often, race comes into play in making decisions whether to arrest or divert.” Not only
are men of color more likely to be detained, studies have shown that once in the system, they
have higher bond amounts and higher odds of imprisonment relative to whites.16

At the Courthouse: How Pretrial Release Decisions are Made
Arrest is only the first step in a pretrial process that involves police, courts, and corrections.
“Pretrial spans the point of arrest through disposition of a case, and includes diversion,
jail, pretrial release, and court processing. Decision makers include police, prosecutors,
judges and magistrates, jail administrators, and pretrial services professionals, all of
whom aim to strike a balance between due process for the defendant, public safety,
and efficient court operation.”17
Once arrested, courts need to decide whether to hold defendants pending trial, release them
with conditions, or release them on their own recognizance. In reality, most defendants are
spending at least some time behind bars before trial:
America leads the world in pretrial detention at three times the world average.18
From 1995 to 2010, the percentage of federal defendants who were detained pretrial
increased from 59% to 76%.19
The federal government estimates that approximately 38% of presumptively innocent felony
defendants are detained for the duration of their cases and, of those, nearly 90% remain in
jail because they can’t afford to post bail. 20
These numbers exist in a world that looks vastly different from the era in which the war on crime
was launched. Violent crime has steadily decreased in the United States and the homicide rate
is now at 1960’s levels. It is an opportune moment ripe for reconsidering pretrial criminal justice
practices and the people and communities they affect.
Actors at each stage of the pretrial process often make decisions independently, and this “silo
effect” fails to recognize the impact that every action along the unfolding pretrial process has on
future outcomes for each individual. Marie VanNostrand, a pretrial research consultant, outlined
some of these decisions at the Roundtable: “Do we warn? Do we cite? Do we arrest? Do we release
pretrial? If we do release, under what terms and conditions? From a prosecutor standpoint, do we
charge? Do we divert? What alternative prosecution path might we go down? All these decisions
have huge implications way down the road.” John Choi, the Ramsey County Attorney in Minnesota,
thinks of the criminal justice system as “a giant assembly line, and no one’s ever questioned the
assembly line. . . We’re not thinking about the bigger picture.”
The Roundtable discussions provided an opportunity to take that step back and look at the system
as an integrated whole.

6

Part II

Refocusing Pretrial Practice
And Policy On Human Dignity
And Procedural Legitimacy
“Contact with the police wouldn’t have to be a bad
thing. Contact with the courts wouldn’t have to be
a bad thing. It is the style and spirit of the contact
that has caused it to be undermining of trust.”
Dr. Tom Tyler, Professor of Law and Psychology, Yale University
The statistics cited in Part I, above, show the volume of people in contact with the pretrial criminal
justice system, but they say nothing about the personal and societal impact of those pretrial
experiences on individuals, families, and communities. Pretrial justice has been defined as:
“the honoring of the presumption of innocence, the right to bail that is not excessive,
and all other legal and constitutional rights afforded to accused persons awaiting trial,
while balancing these individual rights with the need to protect community, maintain
the integrity of the judicial process, and assure court appearance.”22
And so the Roundtable discussions did not begin with the nuts and bolts of pretrial practice
– those decisions about release, detention, and bail that typically make up this stage of the
legal process. Rather, President Travis challenged the discussants to think on a broader level
by considering “high order questions” about the values that underlie the system.

Rethinking Pretrial with Dignity in Mind
To stimulate this discussion, Dr. Jonathan Simon, Associate Dean of the Jurisprudence and Social
Policy Program at the Boalt Hall School of Law, University of California-Berkeley, presented his
paper “Pretrial Dignity: Rethinking Pretrial Procedures and Practices as if Dignity Matters.” The
goals of punishment for criminal activity are many, including incapacitation of the dangerous,
deterrence of future crime, restitution to the victims, and retribution for society. In the war on
crime era, however, Simon argues that “[i]ncapacitating the dangerous to protect the innocent
became for a long time the singular principle that began to shape criminal justice from policing,
through bail, through disposition, etc.”23 In response to public safety concerns, he noted in his
presentation, “mass incarceration was a value. Part of what we have to come to terms with is the
way we set certain values like retribution and incapacitation . . . in the driver’s seat in a way that
has had real consequences.”
7

In so doing, the four values that have traditionally reined in these overall goals and restrained
punishment – proportionality, parsimony, citizenship, and social justice – were often disregarded.
These values were articulated in the National Academy of Sciences’ report on The Growth of
Incarceration: Causes and Consequences:
Proportionality “requires that crimes be sentenced in relation to their seriousness and the
extent of the offender’s moral culpability.”24
Citizenship as a value requires that “[i]mprisonment, both with respect to its length and its
conditions should not strip prisoners” of “[t]he full range of civil society engagements which
make up lived membership in modern societies.”26
Parsimony requires that “[p]unishment for crime, and especially lengths of prison sentences,
should never be more severe than is necessary to achieve the retributive or preventive
purposes for which they are imposed.” 25
Social Justice, in the context of sentencing and punishment, “requires that a penal system
avoid adding to social inequality or reduced opportunity”27 based on a belief that “prisons
should be instruments of justice, and as such their collective effect should be to promote
and not undermine society’s aspirations for a fair distribution of rights, resources, and
opportunities.”28
Each of these values, Simon suggested, “is better understood as helping us fulfill our commitment
to human dignity.” He argues that what has been lost in the race to incapacitate criminals and
potential criminals is dignity, which serves as “a master value to explain all four of the others.”29
Human dignity underlies all of the constitutional limitations on criminal procedure – the
Eighth Amendment’s ban on cruel and unusual punishment, the Fourth Amendment’s ban on
unreasonable searches and seizures, the Fifth Amendment’s protection of the right to remain
silent, and the Sixth Amendment’s right to counsel at trial. In Simon’s words, “[F]orty years of
making pretrial a form of pre-prison has run its course and . . . the time has come to restore values
that we have long insisted on as hallmarks of our legality.”30
According to Simon, emerging evidence suggests that it is possible to treat those in the criminal
justice system with human dignity and to reach goals of crime reduction and public safety. In his
words, “dignity-enhancing procedures are not only compatible with crime prevention objectives;
they may be integral to them.”31
A pretrial landscape that focused on human dignity would, in Simon’s vision, begin with eliminating
racial profiling as a basis for police stops: “If the real reason, or the only plausible reason, a police
officer stops an individual includes their race as a primary consideration, it is not a ‘reasonable’
seizure; not if dignity matters.”32
Using dignity as a guide would also, in Simon’s opinion, require minimal use of arrest as a policing
tool. “Respect for dignity,” he writes, “requires that nobody be placed through the difficulties
involved in custodial arrest and jail detention unless the crime which the police have probable
cause to arrest them for is one whose seriousness makes a jail or prison sentence possible or
even likely.”33

8

The Roundtable discussants recognized that focusing the public discourse on dignity as a value
in pretrial policy and practice won’t be easy. Robert James, the DeKalb County District Attorney in
Georgia, noted that discussions of values can’t be separated from politics, because many criminal
justice decisions are made by elected officials: “The reality is as long as you have an electorate
that values safety over dignity, you’re going to have elected criminal justice decisions that in
some respects adversely impact various segments of the community.” Choi agreed and offered a
strategy: “The political thing can warp good policy, just tear it up. But then I think back to . . . the
value of research and education, not only to the community but also to elected officials, to get
that ‘I need to hold onto my job mentality’ off the table and get down to some good public policy
that’s effective, that’s verifiable, and that shows good outcomes.” As Travis noted, “The proposition
on the table is not to have a value conversation, but to have a different value conversation.”
With crime at historic low points, now is an opportune moment for this shift in mindset. Simon
suggested that perhaps “we can afford . . . as a nation, to ask what [pretrial justice] would look like
if dignity really mattered. Maybe we just couldn’t afford to do that in the 1970s and 80s. We might
find that we’re not going back to that crime control/due process trade-off; we’re actually moving
to a sustainable model of justice at the pretrial level that will actually shrink the incarceral state
because it will be controlling crime.”

Increasing Respect for the Law through Procedural Legitimacy
To stimulate this discussion, Dr. Jonathan Simon, Associate Dean of the Jurisprudence and Social
Policy Program at the Boalt Hall School of Law, University of California-Berkeley, presented his
paper “Pretrial Dignity: Rethinking Pretrial Procedures and Practices as if Dignity Matters.” The
goals of punishment for criminal activity are many, including incapacitation of the dangerous,
deterrence of future crime, restitution to the victims, and retribution for society. In the war on
crime era, however, Simon argues that “[i]ncapacitating the dangerous to protect the innocent
became for a long time the singular principle that began to shape criminal justice from policing,
through bail, through disposition, etc.”23 In response to public safety concerns, he noted in his
presentation, “mass incarceration was a value. Part of what we have to come to terms with is the
way we set certain values like retribution and incapacitation . . . in the driver’s seat in a way that
has had real consequences.”
“Each interaction throughout the system can be handled differently and better – and with each
interaction, respect for the law can be increased.”
Jeremy Travis, President, John Jay College of Criminal Justice
Dr. Tom Tyler, a professor of both law and psychology at Yale, provided another big picture look
at pretrial, presenting a paper on ways to think about improving procedural legitimacy in the
criminal justice system as a way of increasing compliance with the law. Tyler’s research looks at
how legal authority is experienced by people on its receiving end. As he explained, “legitimacy”
is the word researchers use to discuss trust and confidence in system actors, and “trust and
confidence is central to many behaviors we care about, like obeying the law. People who think the
system is legitimate are less likely to break the law.”
In “Legitimacy in Pretrial,” the paper he presented to the Roundtable, Tyler writes of the paradox
of the broken windows model of policing. Broken windows was intended to “show police
responsiveness to community concerns and encourage public trust in the motives of the police
because people see the police working to address the concerns of the community.”34 It was
expected to increase popular legitimacy of the police force in the community.
9

This didn’t happen. Because broken windows policing and, in particular, its expansion to zero
tolerance policies, increased police contacts with residents, more members of the community
were treated as suspected criminals. As a result, the community became less likely to support the
police. Tyler writes: “Such individuals are normally motivated in their everyday behavioral choices
about whether to obey or break laws by their views about the trustworthiness and legitimacy of
the police, so their alienation from the police diminishes public support for policing and increases
the rate of crime.”35 At the Roundtable, Tyler phrased it this way: “Research reviews show that any
form or extent of contact with the criminal justice system is criminogenic.”
Tyler’s paper collected recent studies showing that if, in contrast, people perceive police as
legitimate, they will defer to police authority during personal encounters, increase everyday
compliance with the law, cooperate with police, accept police authority, and diminish support for
public violence. 36
Historically, Tyler told the Roundtable, police departments operated on the belief that “if you drive
down the crime rate, the public will trust you and respect your role as a law enforcement agency.”
But surveys show that despite the decline in crime, trust in the police has generally remained
stable over the past 30 years. 37 That level of trust is marked by a deep racial divide. A 2011 Pew
Foundation poll found that 61% of whites versus 43% of African-Americans view the police as
trustworthy. 38 Trust in the criminal justice system as a whole, moreover, has declined from 43% in
1993 to 28% in 2011. 39
If declining crime rates don’t increase trust and confidence, then what does? Tyler’s research
suggests that legitimacy is built from procedural justice, the perception that the police and the
courts do or do not exercise their authority fairly. Tyler explained to the Roundtable: “It means that
people want to see that decisions are made fairly, that they’re inclusive, that they’re neutral, that
they can trust the motives of the authorities they’re dealing with, and that they’re being treated
respectfully.”
Chief Scott Thomson of the Camden County Police Department in New Jersey, echoed Tyler’s
overall message. Building trust and confidence, he noted, requires “a transition from the warrior
mentality of the police officer to the guardian type of position that we need to be in, which you’re
starting to see now with the reinvention or revisiting of community policing.”
Tyler emphasized to the discussants that legitimacy is not solely a policing issue. “We should
be evaluating all aspects of the system, from initial contacts through prison, against standards
of perceived fairness, with the idea that our long-term goal is to build legitimacy.” Attorney Tim
Cadigan, a criminal justice consultant who spent 25 years working in the federal pretrial services
and probation systems, concurred: “The backlash against police is a public response to the justice
system as a whole. They absorb a lot of the negative stuff that gets directed at probation and
parole.”
There is opportunity for change. As Tyler summarized in his presentation, “As we move into this
new era, it gives us a different framework to try to talk about the policies and practices and
potentially argue for their change.”

10

Part III

Keeping People Out Of Jail:
Changing How Police View Arrest
“It’s very easy to count arrests. It’s not so easy
to count non-arrests.”
Dr. Robin S. Engel, Director, Institute of Crime Science, University of Cincinnati

The criminal courts would lie dormant and the jails would remain empty if not for law
enforcement officers arresting individuals they suspect of crime. Arrest starts the pretrial
machine in motion. Reduce arrests and there will be fewer people in the system for potential
pretrial detention and incarceration outcomes.
But could it possibly be that easy? Isn’t arrest the key to stopping crime and deterring future
crime? The Roundtable moved from a broader discussion of values and legitimacy to a discussion
of the role of police as the gatekeepers of the criminal justice system. Dr. Robin Engel of the
University of Cincinnati’s Institute of Crime Science presented a paper co-authored by Dr.
Nicholas Corsaro and Annelise Pietenpol entitled “The Role of Police in Pretrial Justice: Changing
How Police View Arrest.” Their work suggests that it is possible to reduce both arrests and crime
by changing the nature of initial police-citizen contacts. They propose that police view arrest as a
“limited resource”—an option to be reserved for situations when lesser interventions either fail or
are inappropriate.40 They write: “Of all the potential reform efforts in the area of pretrial justice,
police reform efforts designed to significantly reduce the use of arrest while simultaneously
reducing crime have the potential for the greatest long-term impacts on the entire criminal
justice system.”41
The initial decision to arrest determines the number of individuals who will require processing,
bail, pretrial supervision, or pretrial detention, and the decisions made about those individuals
at each of those pretrial stages, in the famous words of Professor Caleb Foote in 1954, “determine
mostly everything.”42 Engel and her colleagues believe that law enforcement has the best
opportunity to transform pretrial as we know it: “The sheer number of cases that are sent into
the criminal justice system, the strength of the evidence provided, and type and severity of the
offenses, are all within the direct control of the police. These are the same factors that have the
strongest impact on pretrial detention and release decisions.”43
Despite a significant reduction in crime over the past two decades, the adult arrest rate has
not diminished.44 Engel suggests that part of the reason for this is because arrest rates have
been used politically as measures of police productivity and within forces to reward officers for
effectiveness. Arrests, she contends, have come to be viewed as a valuable work “output,” rather
than as what they are—merely one possible “outcome” of an officer-citizen interaction.45

11

“When we develop COMPSTAT systems where all we are doing is measuring performance
and the effectiveness of commanders and officers based on the number of stops that they
make, or the number of arrests that they make, we are creating this problem.”
Chief Scott Thomson, Camden County Police Department

The Hamilton County/Cincinnati, Ohio Case Study
Engel and her colleagues posed this query: “[W]hat if police came to consistently view arrest as a
limited commodity—a tool only to be used when no other alternatives for resolution were readily
available?”46
The loss of 36% of its jail beds forced the Cincinnati Police Department (CPD) to do just this, and
the results demonstrate the potential for using evidence-based policing strategies to reduce
arrests and crime simultaneously.
To understand what the CPD did, it’s first useful to look briefly at how policing typically occurs.
A 2004 report by the National Research Council on Fairness and Effectiveness in Policing47 found
that police strategies run along two spectrums:
A wide or narrow focus on locations to be policed: Targeted policing strategies like hot spots
policing, for example, can be done on a neighborhood or community level, or in
A wide or narrow focus on locations to be policed: Targeted policing strategies like an even
more highly focused manner “based on analyses of crime patterns that identify repeat
crimes, offenders, victims, locations, calls for service, etc.”48
A wide or narrow range of interventions used at the point of police-citizen interaction:
Once police are interacting with the public, they may choose to use a narrow or wide range
of interventions with the people they encounter – everything from persuasion, discussion,
education, coordination with social services and calls for medical or mental health
interventions, to warnings, cite and release and, ultimately, arrest.

The National Research Council (NRC) report found that most police agencies rely on an unfocused
level of attention and a narrow range of interventions. In their paper, the Cincinnati team writes,
“These types of strategies are the most likely to be ineffective, inefficient, and also highly
likely to involve the routine use of arrest as a measure of police activity and response to crime
problems.”49
In contrast, because of the jail bed crisis, CPD commanders had little choice but to widen their
range of interventions and to reserve arrest for the most chronic or high-risk offenders. Police
coordinated with the University of Cincinnati for analysis of crime statistics and determined
that .3% of the population in violent gangs or groups was responsible for 74% of the homicides.
CPD created a special task force—the Cincinnati Initiative to Reduce Violence (CIRV) – and highly
focused policing efforts on those individuals. When arrests were made of these individuals,
officers wrote the initials “CIRV” on their arrest slips with the understanding that throughout the
criminal justice process, these defendants would be prioritized for enforcement action—from
bond setting, to pretrial detention decisions, to prosecution.50

12

Non-CIRV offenses weren’t ignored, they just weren’t prioritized for arrest. District captains were
asked to ensure that they were not using the limited jail resources for minor violations that could
be handled in alternative ways and to be more strategic about who they were arresting, and
why.51
The result? Shootings decreased 22% and homicides decreased 42%.52 In short, the CPD learned
that “more arrests do not equate to increases in public safety; rather public safety is enhanced
when arrests are limited and strategically focused.”53
What can be learned from the CPD case study? Engel noted three things:
Use data to determine the causes and perpetrators of the most chronic and violent crimes;
Narrow the definition of place in hot spots policing to focus on those individuals; and
For lesser crimes, widen the range of interventions deployed once police get involved.

Chief Thompson echoed Engel’s description of law enforcement’s role as the “entry point into the
criminal justice system.” Calling this a “watershed moment in policing,” Thomson emphasized that
it is “time for us [law enforcement] to take an active role in fixing issues on the front end.”
Kevin Tully, the Mecklenburg County Public Defender, focused on the benefit of using alternatives
to arrest for the safety of police themselves. He queried: “Every time you make an arrest you
put your life in danger. Why are you putting your life in danger over sleeping on a park bench?”
Tara Boh Klute, the pretrial services manager for the Kentucky Court of Justice, noted that in
many cases, “If you really look at who’s in that jail, you’re going to find that it’s a poor defendant
charged with a petty crime. If there’s not the option to arrest for that low-level offense, then
things can actually happen.”
Engel believes that “the opportunity for police reform is now. The timing, the stars have aligned.
If we are ever to make an impact on police strategies, it is right now.” Viewing arrest as a limited
resource could have real consequences, in her view, by keeping people out of the system at the
outset. President Travis concluded that “We need to have a much richer toolbox of options for
police—who are responding to real concerns brought to us by real citizens and communities—
than we have now. If we did that better, [people] would never make it into jail, never make it to a
bail questions, and they may not even be prosecuted.”

13

Part IV

Reforming Pretrial Detention:
When To Hold The Presumptively
Innocent Behind Bars
If arrest is the front door to the criminal justice system, then pretrial detention is its waiting
room. On any given day in America, nearly a half million individuals who have been convicted
of no crimes are being kept behind bars awaiting their days in court.54 As Tim Murray, a pretrial
justice advocate, put it, the system begs the question: “What is the purpose of arrest? Is it the
start of a process, or the start of my punishment?”
Having discussed the overarching values that should guide the system and considered the role
of police as the first entry point into it, the Roundtable moved to the next decision point in
the process: whether to release or detain a defendant. Ideally, that decision is made using an
evidence-based risk assessment tool and by balancing three competing values: the defendant’s
right to liberty, the public’s right to safety, and the need to ensure that the defendant will appear
at trial. Defendants at high risk to either commit further violent crime or fail to appear would be
detained, those at low risk would be released, and those who pose a moderate risk would be
released with conditions like pretrial supervision.
In most jurisdictions, however, the decision to release or hold a defendant is made by judges and
magistrates either using subjective factors or arbitrarily by applying bond schedules based on
the offense. The result is a system in which high-risk defendants with access to resources tend to
be released, while low-risk, typically poor, minority defendants, tend to be imprisoned awaiting
trial because they cannot post bail.
The stakes of these pretrial decisions are high. Dr. Marie VanNostrand’s research outlines the
negative impact that even short-term pretrial detention can have on a defendant:
“Research has shown that being detained pending trial impacts the likelihood of receiving
a sentence to incarceration, the length of the sentence to incarceration, and public safety
in both the short and long-term. Not surprisingly, the release of ‘high-risk’ defendants
is related to higher rates of failure to appear and new crime pending trial. What is less
apparent is that even short periods of pretrial detention (as few as 2-3 days) for ‘low-risk’
defendants is related to higher rates of failure to appear, new crime pending trial, and
recidivism two years post-disposition.”55

14

Pretrial detention doesn’t come cheap. The federal government estimates that the U.S. spends $9
billion per year holding defendants behind bars pending their days in court.56 What this number
fails to reflect are the intangible costs of pretrial detention to the defendants, their families,
communities, and society as a whole. Incarcerated defendants incur further costs, not only
because of the negative impact pretrial detention has on their case outcomes, but also from
the risk of losing jobs and housing. These costs may indirectly affect taxpayers in the future by
creating a need for human services or from the cost of future crime and additional use of the
system. Michael Wilson, a policy and data-modeling consultant who presented “A Cost-Benefit
Model for Pretrial Justice” to the Roundtable, demonstrated how to analyze such costs, assigning
dollar values to easily assessed items like jail beds as well as to more difficult to quantify items
like the costs to potential victims of pretrial crime.57 Such a model would allow systems to see the
full impact of their pretrial decisions in an effort to make better decisions about who to detain
and release, and how.
Pretrial decisions are life changing, especially for the young men of color who are
disproportionately likely to be affected. “Research has determined that many people simply
outgrow behavior that gets others labeled as delinquent and locked up,” said Ronald Day,
Associate Vice President of the David Rothenberg Center for Public Policy at the Fortune Society,
who spent more than a decade in prison. “The problem is that poor youths’ contact with the
criminal justice system becomes a detour that hampers their lives long into adulthood.” As bail
expert Timothy Schnacke put it, simply, “Pretrial detention causes bad things to happen to both
the defendants and to society.”58

Reframing the Bail vs. No Bail Narrative
“How did we, as Americans, allow a mechanism created to free you to become the
mechanism that keeps you in?”
Timothy Schnacke, Executive Director, Center for Legal and Evidence-Based Practices
The current norm in American pretrial practice is to require defendants to post a secured money
bond to gain pretrial release. Defendants navigate bail amounts set by predetermined bail
schedules or at the discretion of judicial decision-makers. Although detention exists as a viable
option for those who pose a significant threat to public safety, the current system has led to
defendants being held in pretrial detention despite the fact that, under historic rules governing
bail, they would be considered low-risk and thus released quickly with no money changing hands.
Timothy Schnacke is the Executive Director of the Center for Legal and Evidence-Based Practices
in Golden, Colorado, a nonprofit that provides research and consulting for jurisdictions exploring
and/or implementing improvements to the administration of bail. He presented to the Roundtable
the paper “An Overview of Pretrial Release and Detention in America: Fixing the Narratives for ‘Bail’
and ‘No Bail.’” In Schnacke’s words, “despite all logic and, indeed, decades of empirical research
showing that secured financial conditions of release lead to unnecessary pretrial detention, the
use of those conditions has actually increased about 65% between 1990 and 2009.”59
Schnacke provided the Roundtable with a historic overview of the purpose and usage of bail,
explaining that “the purpose of bail is to release people.” Historically, the criminal justice system
sought to release low risk, or “bailable,” defendants quickly and without requiring any exchange
of funds. This was accomplished, going way back to 1275 in medieval England, by the Statute
of Westminster, which, for the first time, established the bail/no bail dichotomy. In his paper,
Schnacke explained: “Essentially, one was either bailable or unbailable pursuant to the statute,
and England’s sheriffs were expressly required to release all bailable defendants and to detain all
unbailable defendants (both without any money changing hands) under penalty of law.”60 Release
on bail was the norm; detention, the exception.
15

The system operated for centuries using the personal surety model, in which a reputable person
in the community would vouch for the accused without requiring any money up front. The system
worked. Low-risk bailable defendants were released to the recognizance of their personal sureties
with no money exchange; high-risk, unbailable defendants were detained.
The English system of personal sureties and unsecured bond traveled across the ocean to the
American colonies, where it remained in effect through the 1800s. Until that point, Schnacke
writes, indemnification of sureties—what we now call secured bonds – was considered unlawful
in England and America as “being against the fundamental public policy for having sureties take
responsibility in the first place.”61
What changed? Communities began to run out of personal sureties willing to take responsibility for
the accused. Two paths forward arose:

In England and the rest of the world with similar personal surety systems, laws were passed
to allow judges to release defendants without the need for personal sureties.
In America, however, policymakers turned to secured bonds as a solution, and gave rise to
the present for-profit bail bond industry. America, in Schnacke’s words, “made it legal to
both profit and be indemnified at bail, essentially allowing the commercial surety system to
operate in this country starting in about 1900.”62

Now, to be released, even traditionally bailable defendants had to pay something up front, making
release dependent not only on factors associated with risk of pretrial misconduct or failure to
appear, but on the defendant’s ability to pay a secured bond.
How did America transform a process created to free people into one that often operates to
keep them behind bars? Schnacke believes this shift came about because, over time, courts and
policymakers either ignored or redefined the constitutional limitations that traditionally kept
excessive bail and unnecessary pretrial detention in check.
He outlined these changes in his paper. For example, though the Eighth Amendment guards
against excessive bail, Schnacke found that “judges created a line of cases holding, essentially,
that the financial condition of a bail bond is not necessarily excessive simply because a defendant
cannot pay it. . . . Now, so long as it was unintentional, bail amounts could keep a defendant in
jail.”63
Schnacke then examined due process as it relates to bail in U.S. v. Salerno,64 in which the Supreme
Court upheld the Bail Reform Act of 1984, which governs bail in the federal court system. In
Salerno, the Court held that pretrial detention isn’t “punishment,” and thus due process rights
aren’t yet triggered. Salerno allows for the intentional detention of a much larger class of
defendants through “a process called preventive detention, which the Court deemed not to be
punishment, but instead to be a lawful response to the ‘regulatory goal’ of preventing danger
to the community.”65 Federal courts could now consider a defendant’s future dangerousness in
making bail decisions.

16

In Schnacke’s view, “The combined narrative of excessive bail and due process has thus become
as follows: unintentional pretrial detention is not excessive, and intentional detention is
constitutionally permissible.”66
Schnacke then discussed the impact of equal protection jurisprudence on bail, noting that in
this area, neither courts nor legislatures have strained to reframe the equal protection narrative,
even though money conditions of release can have an unequal effect depending on a defendant’s
ability to pay. Instead, he told the Roundtable, “unlike the other things that we redefined or
reapplied in different ways, equal protection we have ignored.”
the absence of a preventive detention statute, courts have used money to keep people
“Inlocked
up, and poor people get swept up in the system.”
Cynthia Jones, Professor of Law, American University

The Path Forward
Fixing the narratives that have allowed money bail to predetermine the fate of so many pretrial
defendants will require work at the legislative and policy levels to create, in Schnacke’s words, “a
pretrial release and detention system that is rational, fair, and transparent.”67
In Schnacke’s view, the problems with bail are “complex, but wholly fixable. We have all the tools.”
Solutions he suggests include:
Legislatures can overrule the Excessive Bail Clause cases by adding a single line to their bail
laws: “The judicial officer may not impose a financial condition that results in the pretrial
detention of the person.”68 This line is already present in the federal statute and the District of
Columbia bail law.
Rather than merely comparing one potential bail amount against another, courts
can focus on the term “reasonable” when making bail decisions, “which would
tend to discourage any conditions of release that make release impossible.”69
Finally, society should be brought into the bail discussion: “[C]itizens can
and should question the government’s use of secured money at bail when
that money is arbitrary, unfair, and shown by research to be ineffective.”70

“There’s no research whatsoever that shows a relationship between someone’s ability to
post bonds and their danger to the community.”
Dr. Marie VanNostrand, Luminosity

17

Evaluating the Use of Pecuniary Justice
Bond amounts aren’t the only monetary aspects of the criminal justice system that poor
defendants struggle to pay. Money punishments, known as Criminal Justice Financial Obligations
or CJFOs, have become routine in the form of fines, restitutions, surcharges, fees, costs, and other
monetary liabilities. Dr. Karin Martin, Assistant Professor of Public Management at John Jay College
of Criminal Justice, whose research includes an investigation of criminal justice debt, presented to
the Roundtable her paper “Revenue or Justice: An Inquiry into the Role of Money in Punishment.”
While fines started out as part of the alternative sanction movement that would keep people out
of jail, they are now often added on to incarceration as an additional means of punishment or
as issued as an administrative cost of using the system. Criminal monetary penalties are being
used more frequently and their amounts are increasing, even though, according to Martin, there is
little “empirical support for [their] cost-effectiveness or punitive capacity.”71 There is little doubt,
however, that the fines have provided much-needed revenue to the criminal justice system. In
New York City, for example, fines generate 47% of all criminal court revenue.72 As voters in many
jurisdictions look to elected leaders to cut costs, systems are increasingly putting the onus on
defendants to cover jail expenses. “This is a problem in all public services,” said Matthew Chase,
Executive Director of the National Association of Counties, “where we are changing to fee-forservice models because of scarce resources.”
Nor is there doubt that the burden of monetary fines is staggering on those saddled with them.
In New York’s Southern District, for example, over $300 million is owed for criminal debts.73 That
failure to pay comes with severe consequences and can lead to revocation of probation, additional
warrants, liens, wage garnishment, tax rebate interception, civil judgments, negative credit
reports, and accompanying difficulties in obtaining employment, housing, and transportation.74
The economic hardships of these financial penalties are not limited to the people on whom they
have been imposed. Taxpayers end up paying more to administer these systems and more still
when people are driven to public assistance. These indirect costs have never been measured, so,
according to Martin, “we have zero idea at this point the actual cost of this entire world of criminal
justice financial obligations.”
Martin is optimistic that “there is a way to craft policy that is sane and fair and that does achieve
some of these goals.” The key, she says, is to challenge three assumptions upon which CJFOs are
based:

People should pay for using the criminal justice system when, in Martin’s view, the criminal justice
system serves the general public as a whole and not just those who come in contact with it;
The system of CJFOs is revenue-producing and essentially cost-free when, as Martin concluded, no
research exists to assess whether the costs of administering and collecting fines and managing
nonpayment outweigh the revenue they bring in; and
All money punishment is equal when, Martin suggests, the punitive effects of a monetary penalty
are disproportionate, rising and falling based on the debtor’s ability to pay.

18

From the corrections perspective, Dr. Marilyn Chandler Ford, the director of the Volusia County
Division of Corrections in Daytona Beach, Florida, noted there are also success stories: “Not
every jail or prison collects the dollars at [this] rate, and not every system uses a compounding
effect.” For those systems that do impose burdensome fines, Martin noted that policy change
will require addressing several questions. First, what is the total amount of CJFO debt? Data is
spread across many systems and institutions, making it difficult to determine the impact on the
system as a whole or on individual debtors. Second, to what extent are monetary penalties—which
were conceived as an alternative to imprisonment—being used in conjunction with incarceration?
Finally, to determine if CJFOs are cost-effective, what are the costs of fine collection as measured
against the burdens on debtors, their families, and the community?
Martin’s hope is that the United States will consider the use of proportional fines or “day fines” as
is done in Europe, which are based both on the severity of the offense and the person’s ability to
pay, and are issued in lieu of jail time.75

Developing Best Practices to Measure and Manage Pretrial Risk
“The first conversation shouldn’t be ‘What are the conditions of release?’ . . .
The first question is ‘What risk does someone pose?’”
Anne Milgram, Esq., Vice President of Criminal Justice, Laura and John Arnold Foundation
The goal of the pretrial detention or release decisions is, on its face, a straightforward one:
Determine which defendants are most likely to reoffend if released and/or which defendants
are flight risks who are likely to fail to reappear in court. Dr. Marie VanNostrand of Luminosity, a
criminal justice consulting firm focused on the pretrial stage of the criminal justice system, has led
numerous large-scale studies on pretrial risk assessment, effective risk management strategies,
and the impact of pretrial release and detention decisions. In her paper “Leveraging Data and
Analytics to Advance Pretrial Justice,” prepared for the Roundtable and co-authored with Brian
Kays, she asks: “[H]ow do we make the most informed pretrial release and detention decisions
that will minimize danger to the community and non-appearance in court while maximizing pretrial
release?”76 The answer, to VanNostrand, is first to measure risk and then to manage it.

Measuring Pretrial Risk
The good news, VanNostrand told the Roundtable, is that “in the past three or four years we’ve
learned more about assessing risk pretrial than we’ve ever known.” Advancements have been
made in measuring risk through initiatives to develop pretrial risk assessment instruments.
The first research-based multijurisdictional pretrial risk assessment instrument in the U.S. was
developed in 2003 for use in The Commonwealth of Virginia. Similar assessments are now used
in six states and in the federal court system, including the Public Safety Assessment-Court (PSACourt) spearheaded by an LJAF initiative and implemented in Kentucky beginning in 2013, with,
VanNostrand notes, “very promising results.”77
The pretrial risk assessments vary and depending on the tool used, may factor in the defendant’s
record of arrests or convictions, prior failures to appear, substance abuse history, residential
stability, employment status, and the nature of the pending charges. Such tools may also
evaluate the defendant’s marital status, educational level, living situation, whether the defendant
has health insurance, and whether the defendant’s driver’s license is suspended.78
19

Some Roundtable discussants cautioned against too heavy a reliance on pretrial risk assessment
instruments. Jonathan Simon queried, “Is this just replacing the cops ‘I’m arresting the bad guys’
with the technocrats ‘I’m arresting the high-risk guys’?” Some factors commonly assessed –
employment status, health insurance, prior arrests and convictions, and educational level – were
viewed as possibly problematic because of “their potential to introduce bias based on race,
gender, and socioeconomic status.”79 As Simon noted, “Having an arrest at 16 is a mark of being
a potential high rate offender, but your chances of having that arrest are hugely skewed based
on race.” But the alternative to using a pretrial risk assessment is the continued use of a system
that is not based on evidence. “I find myself defending the position of using data, [but] a risk
assessment is a tool to inform the decision,” VanNostrand explained, “it is not the decider. The
decisions that are being made are very subjective, they’re very arbitrary, and they oftentimes don’t
achieve our goals and result in disparity and discrimination along the way. . . . We can use data to
help identify particular programs or interventions or risk to help make better informed decisions.”
Others worried that using an instrument would remove the individual nuances of a case. “I don’t
want to rely so heavily on that risk assessment that I forget about the [defendants’] dignity, the
respect, the humanity, and all of the other things that I think we need to take into consideration,”
said Maryann Moreno, a Superior Court judge in Spokane County, Washington. But John Creuzot, a
former state judge in Texas, spoke from the judicial perspective on the value such a tool can add
to the process: “A system demands that there be some kind of predictability that makes sense
along the way from case to case and from court to court, and when you have a validated risk
assessment properly done and administered and coming up with the proper answers, that gives
the lawyer something to work with that he or she can understand, that the judge can understand,
that the prosecutor can understand. Everybody is on the same page, finally.”
The reality is that the vast majority of decisions are being made without any tools, and it’s not
working. Over 90% of U.S. jurisdictions use no evidence-based pretrial risk assessment when
making pretrial decisions on detention, release, and pretrial supervision conditions.80 How
decisions are made in these jurisdictions is a concern for former New Jersey Attorney General
Anne Milgram of LJAF. “Every time we pull data, we find the exact same thing,” she stated. “More
than 50% of high-risk people are released and low-risk people are being kept in jail at high rates.”

Managing Pretrial Risk
“From a prosecutor’s perspective, our job is to seek justice and not to
seek convictions or, in this context, lack of release during the pretrial
process. What that means is that if the right thing to do is agree to certain
conditions of pretrial release, . . . then as a prosecutor I have to and I
should do that.”
Robert D. James, Jr., DeKalb County District Attorney, Decatur, Georgia
Though the use of assessments to measure pretrial risk is still the exception, there have been
efforts to develop evidence-based tools, as shown above. In contrast, there have been far fewer
advances in legal and evidence-based practices short of pretrial detention that can be used to
manage the risks of re-offense pending trial and failure to appear in court.

20

Courts impose a variety of pretrial release conditions in an effort to manage the risk of pretrial
misconduct and flight. VanNostrand conducted a comprehensive review of research into the
following release conditions to determine their effectiveness in reducing unnecessary detention
and assuring court appearance and community safety:
Court date reminders and notifications
Electronic monitoring
Pretrial supervision
Drug testing
Of these, she found that “reminding defendants of their court date is the one release strategy
that is consistently supported by research with results demonstrating an impact (of varying
degrees) on reducing missed court appearances. Court reminders were identified as a promising
practice while it was noted that more rigorous research would be beneficial.”81
VanNostrand also identified pretrial supervision as a “risk management strategy that appears to
have promise.”82 Pretrial supervision practices vary greatly across jurisdictions and may involve
face-to-face contact, home visits, monthly phone calls, automated phone check-ins, and daily inperson reporting by defendants.83 Given this variety, there is an opportunity to further research
the efficacy of the types and frequency of pretrial contacts with defendants to determine what
an ideal evidence-based pretrial supervision strategy for managing risk would look like.
Despite their popularity as pretrial conditions, VanNostrand found the research to be
inconclusive on the effectiveness of drug testing and electronic monitoring in managing pretrial
risk. “In fact,” she writes, “courts across the country order various types of conditions intended
to manage pretrial risk without research to support their effectiveness (e.g., continue or actively
seek employment; continue or start an education program; restrictions on personal association,
residence, or travel; and location restriction programs such as abiding by a curfew, home
detention, or electronic monitoring).”84
In practice, this can be extraordinarily burdensome to defendants, as Janice Radovick-Dean,
the director of the Fifth Judicial District of Pennsylvania’s Pretrial Services Department, noted:
“Some of the conditions make judges and magistrates feel better, but you’re really making
defendants fail because they have to keep up with so many new responsibilities in addition to
their livelihoods.”
“We’re requiring people to pee in a cup and be watched and they have to pay for that,
[and] we don’t know if it’s effective. It’s degrading on every level and you [haven’t been]
convicted of anything.”
Tara Boh Klute, General Manager, Kentucky Court of Justice, Administrative Office
of the Courts, Division of Pretrial Services

21

The Need for Data
The truth is that research in this area is full of gaps. Data on pretrial outcomes—release,
detention, re-offense, and failure to appear – is contained in multiple separate agency
databases with little or no linkage that would allow researchers to connect and track individual
cases across systems. Because of this, “the number and percentage of defendants released or
detained pending case disposition is unknown.”85
The biggest barrier to conducting research in managing pretrial risk is the lack of uniformly
kept, easily accessible, and usable data that links individuals, cases, and outcomes across
agency systems. Ultimately, criminal justice systems must be able to answer three basic
questions:
What is your pretrial release rate?
What is your pretrial court appearance rate?
What is your public safety rate?86
The data necessary to answer these questions is spread across five entities: law enforcement
offices, jails, courts, state and federal criminal history records, and pretrial service
administrations. Even when pulled, the data is difficult to use, as each agency logs the
information it needs to perform its particular task within the criminal justice system without
linking information on an individual or case basis so that the system as a whole can be
examined.
To VanNostrand, data and analytics are the key to advancing pretrial justice. As she told the
Roundtable, “I would argue that we don’t know what works solely because we don’t have the
data.” In the short term, she calls for modifications to allow data to be linked at the person,
arrest event, and court case levels across pretrial agency actors. In the long term, she
recommends that “as data systems are upgraded or replaced, planning for changes should be
approached from a wider criminal justice system perspective and not simply an internal agency
perspective.”87
Obtaining and leveraging this data could produce powerful results. As she shared with the
Roundtable, VanNostrand believes that with this knowledge, “We truly can substantially advance
pretrial justice, [and] we can build a pretrial system that is risk-based, where the absolute
highest risk defendants are detained, the lowest risk defendants are released with minimal or
no conditions, and we have proven strategies and interventions to deal with defendants who
present certain risks. This is within our reach.”

22

Part V

A Call For Research:
Building A Robust Field Of
Pretrial Practice Scholarship
One fact stood out from the Roundtable and the academic papers submitted in support of it:
Though the U.S. criminal justice system makes thousands of life-changing decisions each day, it
doesn’t very often make those decisions using evidence-based legal principles that have been
found to be most effective in reducing crime, arrests, pretrial detention, and system costs.
Academics can play a vital role in providing the information necessary for policymakers and
practitioners to make more effective decisions. “We need to bring the scholarly community to
bear as an ally in the reform effort,” President Travis noted.
In a meta-analysis of existing research studies on the pretrial process, Dr. Christopher
Lowenkamp, a social science analyst at the Administrative Office of the U.S. Courts, together
with his colleagues, sought to “comprehensively and rigorously review [existing literature] in
order to determine which practices are most effective at reducing a defendant’s risk for failure
to appear and new arrest pending case disposition.”88 Lowenkamp presented to the Roundtable
their paper “A Meta-Analytic Review of Pretrial Research: Risk Assessment, Bond Type, and
Interventions.” What the team found was that of over 800 potential studies identified, fewer
than 20% contained data and, of those, fewer than 20% contained information that could be
coded for meta-analysis. Most of this research was unpublished and even those studies that
did provide usable data still failed to report basic descriptive statistics or articulate reasons
for methodological decisions.89 The authors’ conclusion: The research reviewed “lacks enough
methodological rigor to make any concrete conclusions.”90 They made a broad call to action:
“[M]ore peer-reviewed, quantitative research needs to be completed regarding interventions for
pretrial services.”91
Given the gaps in our knowledge, the following areas appear ripe for scholarship. The Laura
and John Arnold Foundation, in conjunction with the John Jay College of Criminal Justice and
the participants in the Roundtable on Pretrial Practice therefore call on those in the field to
engage in statistically-solid, data-driven research in the following areas:92

23

1.

The Arrest Stage and the Role of Police
Research is needed on the potential impact the police can have on enhancing pretrial
justice, in particular exploring the impact of using alternatives to arrest.

2.

The Bail Decision
More research is needed to determine whether secured bonds serve as a deterrent to
failure to appear or pretrial crime.

3.

Pretrial Risk Measurement and Pretrial Risk Assessment Tools
More research is needed in the area of risk assessment development and implementation,
tests of risk assessment validity, the nuances of predicting failure to appear, and how to
best use the information produced by risk assessment instruments.93

4.

Risk Management through Pretrial Release Conditions
The available research on the effectiveness of pretrial release conditions and interventions is
limited. More research is needed to determine the efficacy of the following pretrial conditions:
Electronic monitoring
Drug testing
Though research shows the following conditions show promise in managing pretrial risk,
practices vary widely from jurisdiction to jurisdiction. Research is needed to standardize best
practices for:
Court reminder systems, to determine the nature and frequency of the most effective
court date reminder notification mechanisms; and
Pretrial supervision conditions, to determine best practices and an ideal standard for
the frequency of pretrial contacts, the nature of those contacts, and with whom those
contacts are made.

5.

The Costs of Pretrial Practices
More research is needed into the use of money punishments in pretrial, as well as into
analyzing the costs and benefits of the system as a whole:
Whether the revenue from Criminal Justice Financial Obligations (CJFOs) exceeds the costs of
administering and collecting them.
Whether and how CJFOs are viewed by different types of offenders as a punitive measure.
Increased cost-benefit analyses of the effects of pretrial decision-making that consider not only
the costs of jail beds versus pretrial supervision, but also factor the costs to defendants, their
families, and society of pretrial detention and release.

24

Part VI

The Path Forward:
Changing The Narrative
“Policies should be data-driven, but they should
also be value-defined.”
Jeremy Travis, President, John Jay College of Criminal Justice
The current pretrial criminal justice system has been defined by decades of policing strategies, judicial
decisions, and legislative policies implemented in reaction to public concern about violent crime.
With violent crime reaching historically low levels, it’s time to change that narrative.
The purpose of the Roundtable was to surface issues related to pretrial practice in the criminal justice
system and to discuss bold ideas about reform. Several areas of consensus arose:
Historically low crime rates present an opportunity to refocus policy on the value of human dignity to
counter incapacitation of criminals and procedural efficiency as drivers of practice.
The pretrial system’s disparate parts need to be viewed as a coherent and integrated whole, with
policymakers and practitioners recognizing how decisions made at one stage affect the others.
Exploring alternative strategies to arrest whenever possible has the potential reduce the number
of individuals entering the criminal justice system and, thus, the negative consequences that ensue
from such contacts.
There is an opportunity for scholarship and a need for research to provide data that policymakers
and practitioners can use to make better decisions and exercise their discretion wisely at all points
of the process.
The pretrial process, rethought, can maximize public safety and protect the rights of the
defendants. A message must go out to the public and all stakeholders about what works and what
doesn’t work in reducing crime, arrest, and costs so that a new public policy paradigm can arise.
Reform of the pretrial criminal justice system will require actors from across the spectrum—
from arrest to case disposition—to work together: law enforcement, courts, prosecutors, public
defenders, judges, court officials, pretrial services administrators, corrections officials, outside
service providers, defendants, and victim advocates, as well as scholars, politicians, and
policymakers at the federal, state, and local government levels.

25

No one believes this process will be simple. As Robin Engel noted, “Organizational change is not
quick. It’s not easy. It’s not by accident. It’s by design. It takes planning and hard work.” John Choi,
the Ramsey County Attorney, put it this way: “A narrative can be developed that’s focused around
better outcomes. We will do something that will not cost more, that will keep the public safe, that
will make people better, and is based around intervention.”

APPENDIX A

Discussants’ Biographies
Though their expertise often covered more than one aspect of pretrial, the discussants’ core
backgrounds broke down as follows:

Law Enforcement
Chief J. Scott Thomson serves as the Chief of Police for the Camden County Police Department in New
Jersey, after decades of ascending through the ranks of law enforcement. Chief Thomson also serves
as an Executive Fellow for the Police Foundation and sits on the board of directors for the Police
Executive Research Forum in Washington, D.C., and the board of advisors for New York University
School of Law Center on the Administration of Criminal Law. In 2011, Chief Thomson received the Gary
P. Hayes Award from the Police Executive Research Forum.
Anne Milgram, J.D., is the Vice President of Criminal Justice at the Laura and John Arnold Foundation.
Prior to joining the Arnold Foundation, Ms. Milgram served as New Jersey’s Attorney General, where
she headed the 9,000-person Department of Law and Public Safety. As New Jersey’s chief law
enforcement officer, she oversaw hundreds of prosecutors and approximately 30,000 law enforcement
officers. Ms. Milgram implemented a statewide program to improve public safety through prevention
of crime, law enforcement reform, and re-entry initiatives. She also has served as a member of the
United States’ Attorney General’s Executive Working Group on Criminal Justice and as a co-chair of the
National Association of Attorneys General Criminal Law Committee.

Prosecutors
John Choi serves as the Ramsey County Attorney in Saint Paul, Minnesota, following four years
as City Attorney for Saint Paul. He is known for innovative reforms in the criminal justice system,
including introducing the use of GPS technology to keep domestic violence victims safe in Minnesota,
implementing new performance-based outcomes for juvenile diversion programs, creating a precharge diversion program, and establishing a Veteran’s Court in Ramsey County. He was honored by
his colleagues in North America for his innovation and leadership with the International Municipal
Lawyers Association’s top award for City Attorneys in 2009.
Robert D. James, Jr., serves as the DeKalb County District Attorney in Decatur, Georgia, where he
oversees 155 employees while administering a $12M annual budget and prosecuting more than 8,000
felony cases each year. In 2008, Mr. James launched the Jobs Not Jail year-long initiative, providing firsttime offenders with an opportunity to complete their education, participate in job/life skills training,
and provide job placement. He also created the unique and innovative Project Perfect Attendance
program as part of his goal to redefine the justice system in DeKalb County. Prior to becoming
District Attorney, Mr. James served as the DeKalb County Solicitor-General which prosecutes criminal
misdemeanor offenses filed in the State Court of DeKalb County.

26

Public Defenders
Kevin Tully has served as Public Defender for Mecklenburg County in Charlotte, North Carolina, since
2007, after nearly two decades working for the office in many positions. He oversees the largest public
defender’s office in North Carolina, with a staff of 62 lawyers and 35 support professionals, including
investigators, legal assistants, and social workers. The Mecklenburg County Public Defender Office
represents an annual average of 19,000 clients in adult criminal trial court. He received his J.D. from
the University of North Carolina-Chapel Hill.

Pretrial Services
Tara Boh Klute is the General Manager for the Kentucky Court of Justice, Administrative Office of the
Courts, Division of Pretrial Services. In this position, she developed the program mission, goals, and
objectives, pretrial risk assessment and data management tools, and the training module for new and
existing staff. She also created an inter-disciplinary training program with the Department of Public
Advocacy and the Circuit and District Judicial Colleges. Ms. Klute led the design and implementation of
the Pretrial Release Information Management pretrial case management system known as PRIM.
Dr. Christopher Lowenkamp is currently employed by the Administrative Office of the US CourtsProbation and Pretrial Services Office. He is the co-author of numerous training curricula for criminal
justice staff. He is the also the co-author of numerous risk assessment instruments, including the
Ohio Risk Assessment System, the Post-Conviction Risk Assessment, the Pretrial Risk Assessment, and
the Pretrial Services Assessment-Court Version. He is internationally recognized as an expert in risk
assessment and supervision practices. He previously served as the director of the Center for Criminal
Justice Research and associate director of The Corrections Institute at the University of Cincinnati.
Janice Radovick-Dean is the Director of the Fifth Judicial District of Pennsylvania’s Pretrial Services
Department in Pittsburgh, Pennsylvania, and previously served in the Allegheny County Probation
Department. Ms. Dean has been instrumental in the creation of policies and procedures and the
overall changes made in the department and the Court. She serves as Immediate Past President of
the Pennsylvania Pretrial Services State Association and as the Affiliate Director for the National
Association of Pretrial Services.

Courts
Judge John C. Creuzot currently practices criminal defense law in Dallas, Texas, after serving as a State
District Judge for over two decades and, before that, working as a felony prosecutor. Judge Creuzot
is nationally recognized as an expert in drug courts, criminal justice reform, and evidence-based
sentencing. His initiatives include the founding of Dallas County’s first drug court, which has achieved
a 68% reduction in recidivism and boasts over $9.00 in avoided criminal justice costs for every dollar
spent on participants in the program.
The Honorable Maryann Moreno was appointed to the Washington State Superior Court bench in 2003
and served as Presiding Judge from 2008-2011. Prior to her appointment, she worked both as a private
criminal defense attorney and as a public defender for Spokane County. She is a member of the state
presiding judge education committee, the sentencing guidelines commission, the capital qualification
committee, and the criminal rules committee. She is currently working at the county level with other
criminal justice partners to implement improvements to pretrial detention decision making, including
development of an appropriate risk tool and other evidence-based practices.

27

Corrections
Dr. Marilyn Chandler Ford is the Director of the Volusia County Division of Corrections, a 1500-bed jail
system in Daytona Beach, Florida. She has held a variety of positions within the Division, in research
and planning, as supervisor of classification and programs, finance, human resources, and training,
and as institutional warden. She has published on jails, youthful offenders, leadership, juries, and
social control. Dr. Ford was appointed to Florida’s Criminal Justice Executive Institute Policy Advisory
Board in 2014. She is a charter member and past president of the Association of Women Executives in
Corrections and a Certified Jail Manager.

Public Policy Advocates
Matthew D. Chase is the Executive Director of the National Association of Counties, the only national
association representing America’s 3,069 county governments. During his professional career, Mr.
Chase has focused on promoting America’s community and economic competitiveness, strengthening
the intergovernmental cooperation of federal, state, and local officials, and engaging local government
officials in the federal policymaking process. In addition, he is a regular presenter on the impact of
federal budget and policy trends on local governments and communities.
Ronald F. Day is the Associate Vice President of the David Rothenberg Center for Public Policy at the
Fortune Society, where he oversees advocacy efforts to reduce reliance on incarceration, promote
model programming for the incarcerated population, change laws and policies that create barriers
for successful reintegration, and foster a just and equitable criminal justice system. He is passionate
about reentry, reducing recidivism, dismantling mass incarceration, and addressing the stigma of
incarceration. He is a criminal justice doctoral student at the CUNY Graduate Center / John Jay College
of Criminal Justice and an Adjunct Instructor at John Jay.

Criminal Justice Consultants
Tim Cadigan is Senior Associate of Chesterfield Associates of Maryland, where he consults with state,
county, and local jurisdictions on probation, pretrial services, substance abuse treatment, judicial/
attorney training on criminal justice issues, and racial disparity in criminal justice. For more than 25
years, he worked in the federal pretrial services and probation system. In these roles, he led the data
analysis program, developed evidence-based programming for the federal pretrial services system,
including implementing the Pretrial Services Risk Assessment, and developed federal policies and
procedures incorporating evidence-based programs.
Tim Murray is the Director Emeritus of the Pretrial Justice Institute and the current Executive Director
of its Institute for Justice Planning, providing planning support to jurisdictions engaged in criminal
justice system reform. His extensive pretrial justice experience includes management and executive
positions with the pretrial services systems in Washington, D.C. and Miami-Dade County. While in
Miami, he was the principal architect and administrator of the nation’s first drug court and he went
on to serve with the U.S. Department of Justice as first director of the Drug Court Program Office. He
is a lifetime member of the National Association of Pretrial Services Agencies and the recipient of the
Association’s most prestigious honor, the Ennis J. Olgiati Award.

28

Timothy R. Schnacke is the Executive Director of the Center for Legal and Evidence-Based Practices,
a Colorado nonprofit that provides research and consulting for jurisdictions exploring and/or
implementing improvements to the administration of bail. In addition to his consulting role, he
serves as a pretrial faculty member and has authored pretrial materials for the National Institute of
Corrections. He currently co-chairs the American Bar Association’s Pretrial Justice Committee and,
in 2014, he received the John C. Hendricks Pioneer Award from the National Association of Pretrial
Services Agencies for his work promoting pretrial justice.

Dr. Marie VanNostrand is the Justice Project Manager of Luminosity, a research entity based in Florida
that seeks data driven justice solutions. Prior to joining Luminosity, she worked in the criminal justice
system for 15 years in a variety of positions, including alcohol safety case manager, probation and
parole officer, pretrial services agency manager, and criminal justice analyst. Dr. VanNostrand is a
national expert in the pretrial stage of the criminal justice system and has led numerous large-scale
studies on pretrial risk assessment, effective risk management strategies, and the impact of the
pretrial release and detention decision.
Michael Wilson is an economist who works around the country as a cost-benefit and criminal
justice research consultant. In this role he has worked closely with counties to build local capacity
by developing cutting-edge criminal justice tools, including cost-benefit models, jail and policy
projections tools, and a pretrial specific cost-benefit model. He works with the Pew Charitable Trust to
provide technical assistance in implementing cost-benefit models to multiple states and counties.

Criminal Justice Scholars
Dr. Robin S. Engel is Professor of Criminal Justice at the University of Cincinnati and Director of the
Institute of Crime Science. Dr. Engel’s work involves establishing academic-practitioner partnerships
and promoting best practices in policing and criminal justice. Her research expertise includes
quantitative and qualitative assessments of police behavior, police-minority relations, police
supervision and management, criminal justice policies, criminal gangs, and crime reduction strategies.
For the last several years, she has been ranked among the top academics, and the number one female
academic, in the field of criminal justice/criminology. She is the Principal Investigator for the Cincinnati
Initiative to Reduce Violence, which resulted in several prestigious team awards.
Cynthia E. Jones is a Professor of Law at American University in Washington, D.C., where she
teaches courses in evidence, criminal law, criminal procedure, and a seminar on Race, Crime and
Politics. Professor Jones co-founded the Washington College of Law Criminal Justice Practice
and Policy Institute in 2013 and each year she conducts numerous evidence training seminars
for federal and state judges. She is the former Executive Director of the Public Defender Service
for the District of Columbia, the former Deputy Director of the District of Columbia Pretrial
Services Agency, and has served as the Director of the American Bar Association Racial Justice
Improvement Project. Professor Jones currently serves on the governing boards of the Sentencing
Project and the Pretrial Justice Institute.
Dr. Karin Martin is Assistant Professor of Public Management at John Jay College of Criminal Justice
and Faculty Director of the Tow Policy Advocacy Fellowship, a program of the Prisoner Reentry
Institute. Her current projects include a multi-method investigation of criminal justice debt, a survey
experiment examining dehumanization in the criminal justice system, and an assessment of the role
of implicit racial bias in support for punitive crime policy. She was a post-doctoral scholar in the
Psychology Department at UCLA, where she was also a Fellow with the Center for Policing Equity. She
has been a Fellow at the Center for Research on Social Change at UC Berkeley, a Berkeley Empirical
Legal Studies Fellow, and a National Science Foundation-funded Fellow in the Integrated Graduate
Education Research and Training Program in Politics, Economics, Psychology, and Public Policy.
Dr. Jonathan Simon is the Adrian A. Kragen Professor of Law at UC Berkeley and the faculty director
of the Center for the Study of Law & Society. Professor Simon’s scholarship includes awardwinning books on parole, Poor Discipline: Parole and the Social Control of the Underclass, and
the transformative politics of crime fear in America, Governing through Crime: How the War on
Crime Transformed American Democracy and Created a Culture of Fear. His most recent book, Mass
Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, explores
the momentum for criminal justice reform brought on by the Supreme Court’s historic Brown v. Plata
decision in 2011.
29

Jeremy Travis is President of John Jay College of Criminal Justice at the City University of New York.
Prior to his appointment, he served as a senior fellow in the Urban Institute’s Justice Policy Center,
where he launched a national research program focused on prisoner reentry into society. From 19942000, Mr. Travis directed the National Institute of Justice, the research arm of the U.S. Department of
Justice. Prior to his service in Washington, he served as deputy commissioner for Legal Matters for the
New York City Police Department, a special advisor to New York City Mayor Edward Koch, and special
counsel to the Police Commissioner of the NYPD. Mr. Travis has taught courses on criminal justice,
public policy, history, and law at Yale College, the New York University Wagner Graduate School of
Public Service, New York Law School, and George Washington University.
Dr. Tom R. Tyler is the Macklin Fleming Professor of Law and Professor of Psychology at Yale Law
School. Professor Tyler’s research explores the role of justice in shaping people’s relationships with
groups, organizations, communities, and societies. In particular, he examines the role of judgments
about the justice or injustice of group procedures in shaping legitimacy, compliance, and cooperation.
He is the author of several books, including Why People Cooperate; Legitimacy and Criminal Justice;
Why People Obey the Law; Trust in the Law; and Cooperation in Groups. He was awarded the Harry
Kalven prize for “paradigm shifting scholarship in the study of law and society” by the Law and Society
Association in 2000 and, in 2012, was honored by the International Society for Justice Research with its
Lifetime Achievement Award for innovative research on social justice.

30

ENDNOTES
1. Simon, Jonathan, “Pretrial Dignity: Rethinking Pretrial Procedures and Practices as if Dignity Matters”
at 2. Unpublished conference paper presented at the Roundtable on Pretrial Practice, John Jay College
of Criminal Justice, New York City, March 18, 2015.
2. Tyler, Tom, “Legitimacy in Pretrial” at 2 (quoting Bayley, David H. & Nixon, Christine, “The Changing
Environment for Policing, 1985-2008,” Executive Session on Policing and Public Safety, Harvard/NIJ,
Sept. 2010). Unpublished conference paper presented at the Roundtable on Pretrial Practice, John Jay
College of Criminal Justice, New York City, March 18, 2015.
3. Simon, supra n.1 at 9.
4. Id.
5. See id.
6. Tyler, supra n.2 at 3.
7. Id. at 4.
8. Id. at 6 (citations omitted).
9. Id. at 9.
10. Id. (citations omitted). A study of NYPD stops between 2003-2009 found that in 1.7% of stops police
found contraband; 1.09% of stops police found non-gun weapons; and .15% of stops police found guns.
See id. at 10 (citations omitted).
11. Schnacke, Timothy R., “An Overview of Pretrial Release and Detention in America: Fixing the Narratives
for ‘Bail’ and ‘No Bail’” at 8. Unpublished conference paper presented at the Roundtable on Pretrial
Practice, John Jay College of Criminal Justice, New York City, March 18, 2015.
12. Engel, Dr. Robin S., Corsaro, Dr. Nicholas, and Pietenpol, Annelise, M.P.A., “The Role of Police in Pretrial
Justice: Changing How Police View Arrest” at 12. Unpublished conference paper presented by Dr. Engel
at the Roundtable on Pretrial Practice, John Jay College of Criminal Justice, New York City, March 18,
2015.
13. VanNostrand, Dr. Marie & Kays, Brian W., “Leveraging Data and Analytics to Advance Pretrial Justice” at
1 (citation omitted). Unpublished conference paper presented by Dr. VanNostrand at the Roundtable
on Pretrial Practice, John Jay College of Criminal Justice, New York City, March 19, 2015.
14. Engel, supra n.12 at 12 (citation omitted).
15. Simon, supra n.1 at 8 (citation omitted).
16. Engel, supra n.12 at 4 (citation omitted).
17. Wilson, Michael & Justice System Partners, “A Cost-Benefit Model for Pretrial Justice” at 1. Unpublished
conference paper presented by Mr. Wilson at the Roundtable on Pretrial Practice, John Jay College of
Criminal Justice, New York City, March 20, 2015.
18. Schnacke, supra n.11, at 7 & n.12 (citing David Berry & Paul English, The Socioeconomic Impact of
Pretrial Detention (Open Society Foundation 2011)).
19. U.S. Dept. of Justice, Bureau of Justice Statistics, “Special Report: Pretrial Detention and Misconduct
in Federal District Courts, 1995-2010” (Feb. 2013), available at http://www.bjs.gov/content/pub/pdf/
pdmfdc9510.pdf.
20. Schnacke supra n.11, at 8 & n.15 (citing Reaves, Brian A., “Felony Defendants in Large Urban Counties,
2009 – Statistical Tables” (BJS 2013), available at http://www.bjs.gov/content/pub/pdf/fdluc09.pdf).
21. Dills, Angela K., Miron, Jeffrey A., and Summers, Garrett, “What Do Economists Know About Crime?”
(National Bureau of Economic Research 2008) at 32, fig. 2. Available at http://www.nber.org/papers/
w13759.pdf.
22. Engel, supra n.12 at 3 (quotation omitted).
31

32

23. Simon, supra n.1 at 5.
24. Travis, Jeremy & Western, Bruce, eds., The Growth of Incarceration in the United States: Exploring
Causes and Consequences (National Academy of Sciences 2014) at 324 [NAS Report].
25. NAS Report, supra n.24 at 323.
26. Id.
27. NAS Report, supra n.24 at 332.
28. Id. at 23.
29. Simon, supra n.1 at 5.
30. Id. at 4.	
31. Id. at 10.
32. Id. at 11.
33. Id. at 13.
34. Tyler, supra n.2 at 11.
35. Id. at 7.
36. See id. at 12.
37. Id. at 11 (citations omitted).
38. Id. at 11-12 (citation omitted).
39. Id. at 11 (citations omitted).
40. Engel, supra n.12 at 23.
41. Id. at 5 (citation omitted).
42. VanNostrand, supra n.13 at 3 (citation omitted).
43. Engel, supra n.12 at 7.
44. See id. at 7.
45. Id. at 8.
46. Id. at 9.
47. Skogan, Wesley & Frydl, Kathleen, eds., Fairness and Effectiveness in Policing: The Evidence,
National Research Council (The National Academies Press 2004), available at http://www.nap.edu/
catalog/10419/fairness-and-effectiveness-in-policing-the-evidence.
48. Engel, supra n.12 at 10.
49. Id.
50. Id. at 20-21.
51. Id. at 22.
52. Id. at 21.
53. Id. at 23-24.
54. Walmsley, Roy, World Pre-trial/Remand Imprisonment List (2d ed.) (International Centre for Prison
Studies 2014) at 1. Available at http://www.prisonstudies.org/sites/default/files/resources/downloads/
world_pre-trial_imprisonment_list_2nd_edition_1.pdf.
55. VanNostrand, supra n.13 at 3 (citations omitted).
56. Schnacke at 9 (citing National Symposium on Pretrial Justice: Summary Report of Proceedings (BJA/PJI
2011) at 30 (statement of Attorney General Eric Holder)).
57. Wilson, supra n.17.
58. Schnacke, supra n.11 at 9.
59. Id. at 8 (citations omitted).
60. Id. at 11.
61. Id. at 13.
62. Id. at 15.
63. Id. at 19.
64. United States v. Salerno, 532 U.S. 1009, 121 S. Ct. 1737, 149 L. Ed. 2d 661 (2001).
65. Schnacke, supra n.11 at 20.

66. Id. at 21.
67. Id. at 25.
68. Id.
69. Id. at 26.
70. Id.
71. Martin, Dr. Karin D., “Revenue or Justice: An Inquiry into the Role of Money in Punishment” at 4.
Unpublished conference paper presented at the Roundtable on Pretrial Practice, John Jay College of
Criminal Justice, New York City, March 19, 2015.
72. Id. at 6.	
73. Id. at 7.
74. Id. at 7-8.
75. Id. at 15.
76. VanNostrand, supra n.13 at 3.
77. Id. at 6.
78. See id. at 4-5.
79. Id. at 4-5.
80. VanNostrand, supra n.13 at 15.
81. Id. at 7.
82. Id.
83. Id. at 7-8.
84. Id. at 8-9.
85. Id. at 1.
86. Id. at 14.
87. Id.
88. Bechtel, Kristin, M.S., Holsinger, Dr. Alexander, Lowenkamp, Dr. Christopher T., and Warren, Madeline J.,
B.A., “A Meta-Analytic Review of Pretrial Research: Risk Assessment, Bond Type, and Interventions” at
4. Unpublished conference paper presented by Dr. Lowenkamp at the Roundtable on Pretrial Practice,
John Jay College of Criminal Justice, New York City, March 19, 2015.
89. Id. at 24.
90. Id. at 24-25.
91. Id. at 27.
92. LJAF and the John Jay College of Criminal Justice gathered stakeholders for a two-day follow-up
“Roundtable to Develop a National Pretrial Research Agenda” on October 26-27, 2015 in New York City
to further formulate and prioritize scholarship in this field.
93. Id. at 26. See also VanNostrand, supra n.13 at 9 (“substantially more research is needed to improve our
ability to measure pretrial risk”).

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