Abstract
Excerpted From: Kristin Bechtel, Tyrell Connor and Christopher Lowenkamp, Pretrial Supervision: Race and Revocation, 86-DEC Federal Probation 35 (December, 2022) (3 Footnotes/References) (Full Document)
THE HARMS OF PRETRIAL detention are nearly irrefutable. Recent research indicates that, especially for extended periods, pretrial incarceration may negatively impact case outcomes and pretrial outcomes, and individuals may experience a variety of collateral consequences associated with detention. Beyond this, racial disparities are often observed in release and detention decisions and appear to perpetuate with further downstream consequences. Yet, racial disparities have been noted even before the release decision is made. One study found a 34 percent higher likelihood of a detention recommendation for Black individuals in comparison to Whites, and the source of racial bias was primarily attributed to pretrial policies centered on criminal history, and not personal bias.
Of course, there is nothing unique or surprising about courts and communities wanting reassurance that individuals who will be released pretrial will return to court, follow release conditions, and avoid arrest. Given the public and political discourse about bail reform, whether new policies are derived from local court orders or follow from community engagement and advocacy, legislative authority, or even litigation if an individual is released, judicial officers may choose to order release conditions to mitigate the risk of flight and rearrest. When subjected to release, defendants often are placed on pretrial supervision. Pretrial supervision might include other conditions (for example, location monitoring, testing for the use of illegal substances, obtaining and maintaining employment, and residency requirements). While being released on pretrial is preferable to being detained, the requirements of pretrial supervision are not negligible. Further, there is concern over the use of pretrial supervision and its associated conditions, since conditions expose defendants to revocation and a return to custody (as opposed to release with no conditions), and possible disparate outcomes.
The current study takes advantage of a large federal pretrial sample to describe the assignment of pretrial supervision and subsequent revocation rates. Given the concerns mentioned above about pretrial detention and supervision, this research seeks to determine if there is a racial disparity in revocation rates.
[. . .]
First, we did observe significant differences in the defendant profile characteristics by race. Higher PTRA scores (and a subsequent increase in the likelihood of a higher PTRA classification) and the frequency of firearms offenses were significantly more prevalent for Black defendants than for White defendants. Nearly 55 percent of White defendants fell into PTRA categories II through V, but almost 80 percent of Black defendants fell into these same categories.
Second, revocation rates did not differ significantly by race in the bivariate analysis (9.23 for White defendants v. 8.92 for Black defendants), and this finding persisted in the multivariate analysis after controlling for demographic characteristics, offense-related characteristics, risk, supervision conditions, and officers' recommendations for release or detention.
Third, the PTRA performed as expected. There was a consistent increase in revocation rates from 2 percent to 28 percent that coincided with the PTRA risk categories. With the exception of PTRA category I (the lowest risk level), revocation rates significantly differed by race for PTRA categories II through V. Black defendants experienced significantly lower revocation rates than their White counterparts, despite nearly 45 percent of White defendants falling into Category 1 compared to 20 percent of Black defendants.
Finally, other than drug testing and treatment, supervision conditions and the frequency of contacts did not differ across the races.
The data from this sample likely only tell part of the story, and several questions promptly emerge as a result. Why is it that a group found to be higher risk on the PTRA and with greater needs experiences the same base rate for revocations as a lower risk group? This seems to defy the risk and need principles, unless what we are observing (without the data to confirm it) is precisely what officers are trained to do--identify and mitigate risk and address needs. Or perhaps this is just as simple as recognizing that the majority of people often fare quite well and are successful during the pretrial period.
While further rigorous research is needed to tease out and evaluate these potential confounders, we lift up the following recommendations for policy and practice:
1. The risk and need principles continue to have application-- identifying, understanding, and addressing an individual's challenges during the pretrial period is essential if the individual is ordered to pretrial supervision.
2. A “less is more approach” may be applicable and beneficial for pretrial supervision policies and practices. Both prior and current research suggests that pretrial supervision intensity may not be as necessary as we originally considered. Further testing of this concept is imperative, as it is also unlikely that a one-size-fits-all approach will be universally beneficial.
3. The field should be cautious about the application, or perhaps over-application, of supervision conditions and should closely monitor the dosage of these conditions, as they may not be required or be effective for the full supervision period.
4. Education and training on the impact of pretrial detention--as well as supervision conditions and intensity--are needed to correct the negative and false narratives related to bail reform and to provide the most rigorous evidence available to inform pretrial decision-making. Widespread evidence dissemination will be important for multiple audiences--especially for individuals navigating the pretrial process, the public, judges, prosecutors, policy makers, and the media.
