Pretrial Release and Detention in the Federal Judiciary

Background

The decision to release or detain a person charged with a crime pending trial can be among the most difficult for judges. They must balance a person’s presumed innocence and right to freedom under our Constitution against the imperative of protecting others in the community.

Our laws establish a general presumption that defendants must be released before trial unless the government proves at a detention hearing that they should be detained as a danger to the community or as a flight risk. The Bail Reform Act of 1984 requires courts to consider the least restrictive condition or combination of conditions needed to reasonably assure a defendant’s appearance in court and the safety of others.

Social science research shows that people held in jail pretrial are more likely to be convicted, to be sentenced to longer incarceration terms, or to commit new crimes post-trial compared to their released counterparts. The relative cost of pretrial detention – about $92 per day – is also significantly higher than the cost of pretrial supervision – about $11 a day. Defendants released in the federal system have a high degree of success, with 86 percent committing no new violations or failing to appear in court as required. 

In recent years, the Judiciary has undertaken efforts to ensure that defendants are not unnecessarily detained. These efforts include greater use of empirical assessments of risk factors; the education of judges, pretrial services officers, prosecutors, and defense attorneys; and advocacy of legislation to reduce pretrial detention for certain drug offenses. All of these efforts are aimed at increasing pretrial release rates while protecting communities.

Initiatives

• Pretrial Risk Assessment  – The PTRA is an empirical instrument designed to predict an individual’s risk of failure to appear, new arrest, or violations of pretrial release conditions leading to revocation. It includes factors that research has shown to be predictors of failure, including prior felony convictions, prior failures to appear, the type of offense or offenses charged, and socioeconomic factors such as age, education level, employment status, substance abuse, home ownership, and citizenship. The PTRA is widely used by pretrial services offices in the federal court system.
• Detention Reduction Outreach Program – DROP is a court education and training program that focuses on PTRA education, data analysis, and bringing together stakeholders such as judges, U.S. attorneys, defenders, and pretrial officers to collaborate on ways to reduce unnecessary detention.
• Pretrial Release and Detention Dashboards – The Administrative Office of the U.S. Courts (AO) has created interactive, statistical dashboards that allow individual judges to examine their release and detention decisions based on factors such as risk level (as measured by the PTRA), most serious offense charged, and defendant demographics. Judges can compare their detention and release rates to district, circuit, and national rates, and easily obtain information about any pretrial violation behaviors (i.e., revocations, failure to appear) for released federal defendants.
• Pretrial Services Bail Report & Risk Assessment – Some districts include PTRA information in bail materials to assist judicial officers with release and detention decisions. Given the Judiciary’s commitment to promote public safety while reducing national pretrial detention rates, particularly for lower risk defendants, the Federal Judicial Center (FJC) is exploring whether including PTRA information in the national bail report template is an effective strategy to assist judicial officers with pretrial decision-making.
• Stakeholder Engagement – The Judiciary is working to engage stakeholders in the pretrial justice community to raise awareness about release and detention rates, the use of the PTRA, pretrial supervision outcomes, and sustainable practices that reduce pretrial detention. Participants include the Judicial Conference’s Committee on Criminal Law, a working group of pretrial officers across the country, the Chief’s Advisory Group composed of probation and pretrial services chiefs, the Magistrate Judges Advisory Group, the Department of Justice, and the defense community.
• Education and Training – In 2022, the Federal Judicial Center (FJC) published The Bail Reform Act of 1984 (4th Edition), which discusses the federal Judiciary’s increased use of evidenced-based decision-making and concerns about detention decisions for low-risk defendants. The FJC and the AO also provide pretrial education for judges on the use of risk assessment in pretrial decision-making.

Summary

Coordinated leadership, data transparency, and a commitment to applying principles established in the Bail Reform Act are lowering the detention rate. Combined with education, outreach, and research-based solutions, the trend in lower detention rates is expected to continue.