Locking up millions of Americans costs a lot of money. It comes with devastating social consequences. And it has produced a vast archipelago of institutions at the local, state, and federal level that’s too complicated for even those who administer small corners of it to understand in full.
The White House’s newly announced Data-Driven Justice Initiative aims to tackle these interwoven problems simultaneously by reducing the number of criminal defendants held in our local jails on pretrial detention orders. Seven states and 60 counties across the country have signed up so far.
Notably absent from this coalition: Massachusetts, which continues its silence on the critical issue of local criminal justice reform.
One of the cornerstones of data-driven justice is the use of risk assessment in the pretrial process — to keep dangerous defendants in jail awaiting trial and let low-risk ones remain in the community, staying connected to family and work, and paying their rent and their taxes. Keeping low-risk defendants out of jail awaiting trial has been shown to result in less crime and lower costs — in short, good government.
A thoughtful and ambitious bill crafted by Representative Tom Sannicandro of Ashland and Senator Ken Donnelly of Arlington would finally incorporate data into the pretrial decision-making process and bring Massachusetts in line with this growing reform movement. The bill is long overdue — the current statute governing bail and pretrial in Massachusetts dates to 1836. A hodgepodge of updates has been made over the years, but the law is in need of a total overhaul.
Beacon Hill should move on this timely and important legislation. Delay in moving to data-driven justice increases crime and cost and decreases fairness in our administration of justice.
The decision about release or detention should be based on a defendant’s risk of flight and likelihood of committing a crime before trial. Analyzing existing data about the defendant’s risk is far more objective than the current methods, too often a judge’s best guess about the defendant’s risk and a defendant’s ability to scrounge up bail money.
The tragic murder of Jennifer Martel at the hands of Jared Remy demonstrates the horrific result when data are not used in pretrial release decisions. Remy had 20 prior arrests, mostly for violent offenses. Yet a few days before he killed his girlfriend, after being arrested on assault charges, he paid a $40 fee and was released on his own recognizance.
For every Jared Remy, there are just as many indigent nonviolent offenders incarcerated for minor drug or petty larceny charges who cannot scrape together bail money and sit in our local jails while posing no threats to our communities.
How do data help? By looking at factual prior records and current circumstances, judges can have objective information to guide the decision about pretrial release. Data are blind to famous names and expensive lawyers. Nor are data swayed by a defendant’s ability to make bail.
Jurisdictions that do use data to make pretrial decisions have achieved greater fairness, lower crime, and lower costs. Washington, D.C., releases 85 percent of defendants awaiting trial. Compared to the national average, those released in D.C. are two and a half times more likely to remain arrest free and one a half times as likely to show up for court. The results are lower jail costs and lower crime.
This approach can also help stamp out some of the inequity in the criminal justice system because we know that under the current approach defendants who already have advantages (higher income, employment, stable housing, etc.) are released more often than those with fewer advantages (lower income, ethnic or racial minority, etc.), even for the same crime.
Data-driven justice is also cheaper. Defendants released on their own recognizance cost essentially nothing. For a defendant released and supervised while awaiting trial, the cost is 90 percent lower than the cost to incarcerate. How much could be saved by moving to risk-based pretrial decision-making? Experts say that up to 25 percent of those detained pretrial might be safely released.
While precise estimates are difficult to determine, assuming Massachusetts mirrors the national rate incarcerating 60 percent of criminal defendants while awaiting trial, data driven reforms in line with this new White House initiative have the possibility of saving taxpayers anywhere from $60 million to $150 million annually. One of the few states to quantify the value is Kentucky, which saves $100 million a year with risk-based pretrial decision-making.
With Governor Charlie Baker and State House leaders looking to fill a significant budget gap, we can’t think of a better way to save Massachusetts taxpayers millions annually while reforming a broken system that perpetuates inequality and does little to protect the public’s safety.
Stephen Goldsmith is the director of the Innovations in American Government Program at the Harvard Kennedy School’s Ash Center. He previously served as a prosecutor in Marion County, Ind. Jane Wiseman is a senior fellow at the Ash Center. Previously she served as assistant secretary of the Massachusetts Executive Office of Public Safety.