Across the country, states and localities are pursuing criminal justice reform, rethinking their public safety and incarceration policies. The Pew Charitable Trusts recently brought top officials from several jurisdictions to discuss these topics. The conversation took place in Philadelphia and focused on changes in pretrial systems, including bail and community supervision, including probation.
The panelists came from New York City; Harris County, Tex., which includes Houston; Cook County, Ill., which includes Chicago; and New Jersey, as well as Philadelphia. Significant decreases in jail populations have occurred in each of these jurisdictions in recent years, largely as the result of policy changes.
Participants agreed that more can and should be done to cut jail populations and make criminal justice systems fairer and more effective without jeopardizing public safety. As Cara Smith, chief policy officer for the Cook County Sheriff’s Office, said, “You don’t just declare victory and go home.”
During the event—which was moderated by Michael D. Thompson, Pew vice president and head of government performance—several themes emerged as having potential to improve pretrial procedures.
Of the jurisdictions represented, New Jersey has made the most progress on this front, all but eliminating cash bail in an attempt to make the system more equitable. Cash bail was used only 102 times among 44,383 defendants in the state in 2018, said Jennifer M. Perez, director of trial court services for the New Jersey judiciary. Instead of setting an amount to be paid as bail, judges determine whether an individual should be detained or released pretrial. Under the current system, only 6 percent are held. This means, Perez said, that low-income people are not detained for lack of funds, and high-risk individuals cannot go free simply because they have money.
In Philadelphia, the use of bail—and the dollar amounts imposed by judges—has been reduced in the past year. Individuals who are unable to post low amounts of bail are staying in jail for shorter periods because of a new requirement that bail be reviewed after five days. But the underlying system in Philadelphia and Pennsylvania has not changed, noted Keir Bradford-Grey, chief defender for the Defender Association of Philadelphia. She would like to see rules revised by the Supreme Court of Pennsylvania, as well as state legislation that would move toward eliminating cash bail.
Probation is community supervision imposed by the court, generally in lieu of incarceration. Panelists agreed that the primary goal of probation should be not to punish but to improve the lives of the individuals under supervision. They acknowledged that although probation departments generally agree with this perspective, the wider criminal justice community, as well as those being supervised, rarely does.
According to the participants, law enforcement officials see probation as a slap on the wrist, while individuals under supervision tend to view it as being “set up” to fail, in the words of Ana M. Bermudez, the New York City probation commissioner. Robert Listenbee, Philadelphia’s first assistant district attorney, said the system can seem “oppressive” to African-American men, adding, “Probation has really been a bane of their existence for a lot of people, and it needs to change.”
The probation offices in New York City and Harris County have been working to shed these perceptions by making changes in how they deliver services and address probation violations—especially “technical violations,” such as an individual missing an appointment with a probation officer or failing a drug test. In both jurisdictions, officials are shifting away from punishment for such violations and toward creating a culture of success rather than failure.
“There is this very embedded belief that deterrence works. And we know that isn’t true. … You can’t change behavior overnight,” said Teresa May, director of the Community Supervision and Corrections Department in Harris County. “A lot of people think that punishment is the only means of accountability,” Bermudez added. Recently, she said, nine out of 10 sanctions against individuals on probation in New York have been the result of new major crimes, not technical violations.
All the criminal justice systems represented at the event use risk assessment tools at one or multiple points to evaluate individuals involved in the system. Typically, data about an individual is collected and processed using an algorithm to determine, for instance, the risk of that individual failing to appear for a court date or committing an offense.
Philadelphia does not use a risk assessment tool before trial. But Darlene Miller—chief of Philadelphia’s Adult Probation and Parole Department, who was in the audience—noted that her department has been using this approach since 2009 to identify how much, and what kind of, supervision individuals need. In Harris County, an assessment is conducted before a probation sentence is imposed to help determine the conditions of probation, focusing on the needs of incoming clients. In New Jersey, risk evaluation is used to determine a defendant’s risk level and eligibility to be released before trial.
Bradford-Grey expressed concerns about risk assessment tools—concerns that are shared by many inside and outside the criminal justice system. She said consideration of an individual’s age at first arrest, marijuana-related convictions, and similar factors exacerbate racial disparities in the system. Other panelists agreed that algorithm bias is a valid concern.
Some jurisdictions have put measures in place to try to minimize such bias, including increasing transparency so that each party in the case, including the defendant, can see what was assessed and what the results were. This is done in New Jersey. The tools can evaluate both needs and risks, which is the case in Harris County. Beyond that, the panelists said, the results should inform rather than dictate decision-making. And the tools themselves should be regularly adjusted to make sure they are producing the desired results.
There was a broad consensus that continued progress is needed in both pretrial release practices and community supervision. In Philadelphia, for instance, officials are concerned that the racial and ethnic makeup of the jail population has not changed, even though the number of people in jail has dropped by 44 percent since 2015. That means, said Rachael Eisenberg, project manager for the MacArthur Foundation Safety and Justice Challenge in the Philadelphia Managing Director’s Office of Criminal Justice, that people of color still account for a disproportionate share of incarcerated individuals.
Bradford-Grey said increased access to counsel soon after arrest can help ensure that individuals who don’t need to be in jail are kept out and, in some cases, put in programs where they can get the necessary help. Panelists agreed that the expansion of pretrial programs can reduce the number of people who enter the criminal justice system and do a better job of addressing their underlying needs.
Data access and analysis are essential to reform efforts, the panelists said. It’s vital to know who is in jail, how bail is being used, who is on probation, and whether reforms are producing the desired outcomes across the system and in the community. “Data is absolutely essential,” May said. “Leadership has to be able to manage through data.”
Larry Eichel is a director and Octavia Howell is a researcher with Pew’s Philadelphia research initiative.
Missed the live event? Watch it now on demand.