Changing the criminal justice system through philanthropy

Three years ago, the Laura and John Arnold Foundation (LJAF) set out to identify the areas of criminal justice where private philanthropic efforts could have the greatest positive impact on public safety, cost-effectiveness, and fairness. 

We looked at a range of issues, seeking to understand the root causes of some of the systemic failures in our criminal justice system.

Ultimately, we determined that the highest-leverage opportunities lie in reforming the “front end” of the system – that is, the processes and policies that determine what happens to a defendant, from the time he is arrested, until his case is either tried in court, or otherwise resolved.

In the United States, after a person is arrested and booked into jail, he has an opportunity to appear before a judge or magistrate and request that he be released while his case works its way through the courts.

A defendant may be detained, released on his own recognisance (a security entered into before a court with a condition to perform some act required by law; on failure to perform that act a sum is forfeited), or released with court-imposed conditions (such as supervision, monitoring, home confinement, financial bail, or other requirements). 

Because it can take many months or even years for a case to be resolved, the release/detention decision has lasting effects – and it can dramatically impact the ultimate outcome of a case.  

Before we began this work, we assumed that the decision about whether to release or detain a defendant was based on the risk a defendant poses to society. More specifically, we assumed this decision revolved around two questions: (1) Is the defendant likely to commit a new crime – particularly a violent one? and (2) If the defendant is released, will he come back to court when required to? 

After all, in a system in which a defendant is innocent until proven guilty, these two questions should be the focus of the analysis, prior to trial. If the system indeed focused on those two questions, what we would see in our country’s jails would be quite straightforward: dangerous defendants stay in jail, while low-risk individuals get out – often to rehabilitation, supervision, or monitoring.  

But that is not what the data shows. As we began to dig into criminal justice data from across the country, we came across startling statistics. Quite often, as many as half of the very highest-risk defendants are released before trial, while large numbers of low-risk, non-violent defendants spend long periods behind bars. 

Perhaps not surprisingly, this system has had a significant impact on public safety, with the release of violent offenders who frequently commit new violent offenses. It also has a disproportionate impact on low-income defendants, who, having often remained in jail for many months, face enormous economic and social instability when they return to the community. 

After discovering this, we commissioned studies on this topic. These studies show, for example, a disturbing correlation: that when low-risk defendants are kept in jail – even for just a few days – their rate of committing new crimes in both the short- and long-run is significantly higher.  

In short, the system just isn’t working. When we make decisions that do not prioritise the risk that an individual offender poses, we make ourselves less safe. And we are spending enormous sums of money (criminal justice is typically the second-largest line item in state budgets) in a way that is not cost-effective.  

Why does this happen? 

We believe it is because less than 10% of jurisdictions use objective, data-driven tools to help police, prosecutors, courts, and others to identify those defendants who pose a significant risk to public safety and should be detained, and those who can safely be released or dealt with through supervision, diversion programs, or alternatives to incarceration.  

Our objective became to change that – to leverage data, analytics, and technology to create tools to help decision-makers measure risk more effectively.

We began by assembling the largest-ever database of pretrial cases – 1.5 million records from seven states, Washington D.C., and the entire federal court system. LJAF’s researchers rigorously analyzed the data to identify the factors that were most predictive of the risks that a given defendant, if released before trial, would engage in violence, commit a new crime, or fail to return to court. 

Remarkably, what they found was that with just nine pieces of data on each defendant, we could predict all three of these risks with a high degree of accuracy. And even more notably for the many jurisdictions with strained budgets, all of this information could be gathered quickly and easily, by looking at criminal history and other administrative records.  

The resulting tool, the Public Safety Assessment – Court (PSA-Court), has been used for the past year by judges throughout the state of Kentucky to help decide which defendants will be detained before trial, and which will be released. Data from this pilot project, which we will soon release publicly, indicates that the PSA-Court is assessing risk very effectively, allowing Kentucky to simultaneously drive down crime and reduce detention rates.

We are beginning PSA-Court pilots in 12 additional counties in four states this spring and summer, and we anticipate introducing the tool in four to eight more jurisdictions by year-end 2015.   

This is part of LJAF’s larger effort to integrate risk-based decision-making throughout the front end of the criminal justice system. We have also created a risk instrument for prosecutors to use in making charging, plea, diversion, and other key decisions, as well as a risk tool focused specifically on domestic violence.

In addition, we have partnered with the International Association of Chiefs of Police to research how police departments are currently using citations in lieu of arrest in certain situations, and we will work to develop and pilot tools for law enforcement to use in making these decisions. We intend to make the PSA-Court and these other tools available to jurisdictions nationally at no cost.  

Even when using these risk instruments, police, prosecutors, and courts will retain the discretion they have always had to make the decisions they believe to be best in each case.  However, by giving them access to objective, data-driven tools to more accurately assess defendants’ risk levels, we believe we can improve public safety, reduce crime, and ensure that the system works as fairly and cost-effectively as possible. 

Given the enormous human and financial cost of the status quo – where low-risk, non-violent defendants fill many of our jail beds and high-risk defendants often remain free – this is a challenge we must address.  

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