Dangerous Defendants
abstract. Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but it also forces the criminal justice system to confront a difficult question: what statistical risk that a person will commit future crime justifies short-term detention—if any does? What about lesser restraints on liberty, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has raised concern in some quarters, the debate so far has largely ignored this foundational question.
One way of thinking about what level of crime risk justifies restraint is to ask whether the answer is different for defendants than for anyone else. It is generally assumed that defendants are a special case, exempt by virtue of pending charges from otherwise applicable protections against preventive interference. This Article challenges that assumption. It argues that, for purposes of restraint for general dangerousness, there is no clear constitutional, moral, or practical basis for distinguishing defendants from non-defendants who are equally dangerous. There is thus no basis to conclude that the risk standard for such restraint should be different for defendants than for anyone else.
author. Assistant Professor of Law, University of Georgia School of Law. For extremely helpful input, I am indebted to Laura Appleman, David Ball, Shima Baradaran Baughman, Richard Berk, Mitchell Berman, Stephanos Bibas, Kiel Brennan-Marquez, Jessica Eaglin, Barry Friedman, Lauryn Gouldin, Rachel Harmon, Paul Heaton, John Hollway, Mark Houldin, Douglas Husak, Samuel Issacharoff, Orin Kerr, Seth Kreimer, Jim Jacobs, Craig Konnoth, Joanna Langille, Sophia Lee, Youngjae Lee, Richard Lippke, Stephen Morse, Anna Roberts, David Rudovsky, Tim Schnacke, Larry Schwartztol, Jocelyn Simonson, Megan Stevenson, Alec Walen, Rebecca Wexler, Sam Wiseman, participants of the University of Pennsylvania Fellows’ Workshop, participants of the Quattrone Center’s Lunch Workshop Series, attendees of the bail panel at CrimFest 2016, and attendees of faculty presentations at Berkeley Law, Boston University School of Law, Brooklyn Law School, Louisiana State University Paul M. Hebert Law Center, Roger Williams University School of Law, Rutgers Law School, Sandra Day O’Connor College of Law, Southern Methodist University Dedman School of Law, University of Georgia School of Law, and University of Utah S.J. Quinney College of Law. For institutional support, I am grateful to University of Pennsylvania Law School, the Quattrone Center for the Fair Administration of Justice, and University of Georgia School of Law. Heather Richard and the editorial team at the Yale Law Journal provided invaluable editorial advice that much improved the piece. And, as always, I am most grateful to Maron Deering, whose patience is unending.
Todd D. Minton & Zhen Zeng, Jail Inmates at Midyear 2014, Bureau Just. Stat. 1 (June 2015), http://www.bjs.gov/content/pub/pdf/jim14.pdf [http://perma.cc/TJ69-EYN7].
Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009 - Statistical Tables, Bureau Just. Stat. 1, 15 (Dec. 2013), http://www.bjs.gov/content/pub/pdf/fdluc09.pdf [http:// perma.cc/5EJA-XGNQ] (reporting that nine out of ten detained felony defendants had bail set).
Recent studies report that misdemeanor pretrial detention rates in several large cities range from twenty-five to more than fifty percent. Mary T. Phillips, Pretrial Detention and Case Outcomes, Part 1: Nonfelony Cases, N.Y.C. Crim. Just. Agency (2007), http://www.nycja .org/lwdcms/doc-view.php?module=reports&module_id=669&doc_name=doc [http:// perma.cc/HL2K-ZLLM] (reporting that twenty-five percent of misdemeanor defendants are detained pretrial in New York City); Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 733, 736 tbl.1 (2017) (reporting that fifty-three percent of Houston misdemeanor defendants were detained pretrial from 2008 to 2013); Charlie Gerstein, Note, Plea Bargaining and the Right to Counsel at Bail Hearings, 111 Mich. L. Rev. 1513, 1525 n.81 (2013) (reporting that twenty-five percent of New York City misdemeanor defendants and fifty percent of Baltimore misdemeanor defendants are held on bail); Megan Stevenson, Distortion of Justice: How the Inability To Pay Bail Affects Case Outcomes 12 (Jan. 12, 2017) (unpublished manuscript) (on file with author) (reporting that, between 2006 and 2013, forty percent of defendants with bail set at five hundred dollars or less were detained in Philadelphia); see also id. at 11 (noting that twenty-eight percent of detained defendants only had misdemeanor charges).
Developing a National Model for Pretrial Risk Assessment, Laura & John Arnold Found. 5 (Nov. 2013) [hereinafter LJAF, Developing a National Model], http://www.arnoldfoundation .org/wp-content/uploads/2014/02/LJAF-research-summary_PSA-Court_4_1.pdf [http:// perma.cc/64WV-EXQE].
See, e.g., The Dangers of Bail Reform Across the U.S., U.S. Bail Reform News, http://www .usbailreform.com/in-the-news [http://perma.cc/44SV-6EEC]; Have Bail Reforms Made Us Safer? Two Views, Daily Rec. (June 18, 2017), http://www.dailyrecord.com/story /opinion/2017/06/18/bail-reform-new-jersey/102990434 [http://perma.cc/QR67-66ZZ]. Opponents of bail reform are supporting a lawsuit recently filed by the mother of a murder victim against Chris Christie, alleging that New Jersey’s bail reform is responsible for her son’s killing by a defendant on pretrial release. See, e.g., Ariel Scotti, Dog the Bounty Hunter Joins Bail Reform Lawsuit against Chris Christie, N.Y. Daily News (Aug. 1, 2017), http://www .nydailynews.com/news/national/dog-bounty-hunter-joins-bail-lawsuit-chris-christie -article-1.3374458 [http://perma.cc/3PEB-UL7Y]; Christine Stuart, Murder Victim’s Mother Sues Chris Christie Over NJ Bail Reform, Courthouse News Serv. (Aug. 1, 2017), http://www.courthousenews.com/murder-victims-mother-sues-chris-christie-nj-bail -reform [http://perma.cc/37Y4-BRDX].
LJAF, Developing a National Model, supra note 7, at 1; see also Shima Baradaran & Frank L. McIntyre, Predicting Violence, 90 Tex. L. Rev. 497, 547 (2012) (concluding on the basis of an empirical study “that judges are basing their [pretrial] decisions far more on predicted violence than on predicted flight”). The contemporary emphasis on danger is also reflected in the name of what has rapidly become the most prominent pretrial risk assessment tool: the Public Safety Assessment (PSA). See Public Safety Assessment, Laura & John Arnold Found., http://www.arnoldfoundation.org/initiative/criminal-justice/crime-prevention/public-safety -assessment [http://perma.cc/NAF4-DRYK].
For recent discussions of flight risk, see Lauryn P. Gouldin, Defining Flight Risk, U. Chi. L. Rev. (forthcoming 2018); Lauryn P. Gouldin, Disentangling Flight Risk from Dangerousness, 2016 BYU L. Rev. 837 (2016) [hereinafter Gouldin, Disentangling]; and Samuel R. Wiseman, Pretrial Detention and the Right To Be Monitored, 123 Yale L.J. 1344, 1351 (2014).
Is it better that ten men who will commit future crime go free than one who would otherwise commit no crime be detained, or the reverse? Blackstone himself endorsed much greater over-inclusiveness in preventive restraint than in punishment, but did not offer a precise ratio. See 4 William Blackstone, Commentaries *252-56.
Federal Pretrial Risk Assessment Instrument (PTRA), Version 2.0 (Mar. 1, 2010) [hereinafter Federal PTRA], http://www.pretrial.org/download/risk-assessment/Federal%20Pretrial%20Risk%20Assessment%20Instrument%20(2010).pdf [http://perma.cc/PT9S-LS6K]. The instrument does not specify the average length of the pretrial period in the dataset from which it was developed.
James Austin et al., Florida Pretrial Risk Assessment Instrument, JFA Inst. 4, 11, 13, http://www.pretrial.org/download/risk-assessment/FL%20Pretrial%20Risk%20Assessment%20Report%20(2012).pdf [http://perma.cc/BW42-XC9E].
Results from the First Six Months of the Public Safety Assessment – Court in Kentucky, Laura & John Arnold Found. 3 (July 1, 2014) [hereinafter LJAF, Results], http://www .arnoldfoundation.org/wp-content/uploads/2014/02/PSA-Court-Kentucky-6-Month -Report.pdf [http://perma.cc/S8GJ-ZKZ2].
See, e.g., Press Release, ACLU, Bail Reform Rules Must Uphold the Aims of Criminal Justice Reform, ACLU-NJ and Other Groups Tell NJ Supreme Court (June 3, 2016), http://www.aclu.org/news/bail-reform-rules-must-uphold-aims-criminal-justice-reform-aclu-nj-other-groups-tell-nj-supreme [http://perma.cc/6LKD-AHPE] (expressing concern about draft bail reform rules); Bail System Reform, ACLU N.J., http://www.aclu-nj.org/legislation/bail -system-reform1 [http://perma.cc/UR65-64CD] (opining that “[a] system based on actual risk to the community—not ability to pay—better protects public safety, reduces jail overcrowding, keeps families together, and saves taxpayer resources”); Job Announcement, ACLU, Staff Attorney – Bail Reform [CLRP-25], ACLUF, Trone Center for Justice and Equality, New York (Apr. 13, 2017), http://www.aclu.org/careers/staff-attorney-bail-reform-clrp -25-acluf-trone-center-justice-and-equality-new-york [http://perma.cc/KS2V-BVRB] (explaining that the national ACLU is seeking a staff attorney to “develop, pursue, and conduct litigation aimed at bail reform in America”).
See, e.g., Jessica M. Eaglin, Constructing Recidivism Risk, 67 Emory L.J. 59 (2017); Melissa Hamilton, Risk-Needs Assessment: Constitutional and Ethical Challenges, 52 Am. Crim. L. Rev. 231, 256-61 (2015); Anne Milgram et al., Pretrial Risk Assessment: Improving Public Safety and Fairness in Pretrial Decision Making, 27 Fed. Sent’g Rep. 216, 220 (2015); Julia Angwin et al., Machine Bias, ProPublica (May 23, 2016), http://www.propublica.org/article/machine -bias-risk-assessments-in-criminal-sentencing [http://perma.cc/FB8E-WSV2]; see also Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007) [hereinafter Harcourt, Against Prediction] (arguing against predictive law enforcement); Bernard E. Harcourt, Risk as a Proxy for Race: The Dangers of Risk Assessment, 27 Fed. Sent’g Rep. 237 (2015); Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan. L. Rev. 803, 803 (2014) (critiquing actuarial recidivism risk prediction instruments as “an explicit embrace of otherwise-condemned discrimination”); Megan Stevenson & Sandra G. Mayson, Pretrial Detention and Bail, in 3 Reforming Criminal Justice: Pretrial and Trial Processes 21, 34-39 (Erik Luna ed., 2017); Sandra G. Mayson, Bias In, Bias Out: Criminal Justice Risk Assessment and the Myth of Race Neutrality (unpublished manuscript) (on file with author).
See infra note 122. By contrast, in New York, stakeholders continue to resist pretrial restraint for dangerousness entirely, galvanizing debate. See, e.g., Tina Luongo & Cherise Fanno Burdeen, Letters to the Editor, Setting Bail and Assessing Risk to Public Safety, N.Y. Times (Apr. 3, 2017), http://www.nytimes.com/2017/04/03/opinion/setting-bail-and-assessing-risk-to -public-safety.html [http://perma.cc/74LS-43CN].
See, e.g., Laurence H. Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371, 378 (1970) (“To the limited extent that medical science furnishes techniques capable of objectively ascertaining the presence of dangerously incapacitating illness, . . . neither a comparable body of knowledge nor a comparable technology of prediction is yet available for dealing with criminal behavior generally.”). But see Note, Preventive Detention Before Trial, 79 Harv. L. Rev. 1489, 1506-07 (1966) (concluding that “given the current state of behavioral prediction,” judges’ discretion to detain should be restricted but not necessarily removed).
Until a New Jersey-specific validation study is performed, we do not know exactly what that probability is, but if the premise of the PSA is correct—that it functions with comparable accuracy across jurisdictions—then a high-risk classification in New Jersey should approximately correspond to the risk it was shown to represent in the only published evaluation: a 23% chance of rearrest for anything in a six-month time span, or, for those flagged as high risk for violence, an 8.6% chance of rearrest on a violent charge. LJAF, Results, supra note 16, at 3.
The Chicago police department has perhaps come closest to this scenario by keeping a highly controversial “heat list” of high-risk individuals for special surveillance, threats, and incentives. See Matt Stroud, The Minority Report: Chicago’s New Police Computer Predicts Crimes, but Is It Racist?, Verge (Feb. 19, 2014, 9:31 AM), http://www.theverge.com/2014/2/19/5419854 [http://perma.cc/T678-AA68].
Note that this question does not arise for restraint to prevent flight or obstruction of justice, because those risks are unique to the pretrial process. There are pressing questions, however, about what restraints are permissible to mitigate the risks of flight and obstruction. See, e.g., R.A. Duff, Pre-Trial Detention and the Presumption of Innocence, in Prevention and the Limits of the Criminal Law 125-28 (Andrew Ashworth et al. eds., 2013) (arguing for limitations on pretrial restraints to prevent obstructive harms); Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585 (2017) (raising questions about the utility and constitutionality of money bail as a mechanism to ensure appearance); Wiseman, supra note 12, at 1350 (arguing that “non-dangerous defendants” have a right to electronic monitoring, in lieu of detention, to prevent flight).
John E. Coons, Consistency, 75 Calif. L. Rev. 59, 59 (1987) (“Like cases should be treated alike: This form[u]la of Aristotle is widely accepted as a core element of egalitarian moral and social philosophy.” (citing Aristotle, Ethica Nicomachea § 1131a-b (W.D. Ross trans., Clarendon Press 1925) (c. 384 B.C.E.))).
See Duff, supra note 28, at 120 (suggesting that pretrial detention incurs little outrage because “the defendant is seen as being in fact an offender, who awaits only the formal verdict of the court before receiving the punishment he deserves”); cf. Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 903 (2015) (“One reason the coercion costs of policing are neglected is that many of them accrue to the targets of policing . . . .”).
See, e.g., Andrew Ashworth & Lucia Zedner, Preventive Justice 152-67 (2014) (discussing forms of preventive detention in the United States and internationally); Adam Klein & Benjamin Wittes, Preventive Detention in American Theory and Practice, 2 Harv. Nat’l Security J. 85, 87 (2011) (cataloging the “diverse statutes and regimes authorizing the preventive detention of individuals not convicted of a crime to prevent harms caused by that person”).
See, e.g., David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97 Calif. L. Rev. 693, 695 (2009) (“In reality, . . . preventive detention is already an integral feature of the American legal landscape.”); Christopher Slobogin, The Civilization of the Criminal Law, 58 Vand. L. Rev. 121, 124 (2005) (noting “the widespread promulgation of new incapacitation regimes” that condition detention on dangerousness alone, without the “traditional” prerequisites of a conviction or serious mental illness).
E.g., Stephen J. Morse, Preventive Confinement of Dangerous Offenders, 32 J.L. Med. & Ethics 56, 56 (2004) (concluding “that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime”); Tribe, supra note 22, at 371 (arguing that a proposal to detain “hard core recidivists” is misguided in light of “the dubious ability of pretrial preventive detention to contribute to the control of crime”); Alec Walen, A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists, 70 Md. L. Rev. 871, 877 (2011) (“[A]n individual may not be deprived of his liberty unless the reasons for doing so respect his status as an autonomous person.”).
E.g., Ronald J. Allen & Larry Laudan, Deadly Dilemmas III: Some Kind Words for Preventive Detention, 101 J. Crim. L. & Criminology 781, 782 (2011) (“While we have no intention of defending all or even most forms of preventive detention in their concrete instantiations, we think that preventive detention is, under many circumstances, a legitimate and principled part of the criminal law.”); Paul H. Robinson, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 Harv. L. Rev. 1429, 1456 (2001) (arguing that an explicit preventive regime would be preferable to current practice of “cloaking” prevention as punishment); Slobogin, supra note 37, at 122 (making the case for a pure preventive regime).
Stack v. Boyle, 342 U.S. 1, 5 (1951) (“Since the function of bail is limited, the fixing of bail . . . must be based upon standards relevant to the purpose of assuring the presence of th[e] defendant.”); Note, supra note 22, at 1489 (“In theory, the sole danger at which bail is aimed is the possibility of flight . . . .”).
See Act of Sept. 24, 1789, ch. 20, § 33, 1 Stat. 73, 91 (guaranteeing a right to bail in noncapital cases) (repealed 1984); John S. Goldkamp, Two Classes of Accused: A Study of Bail and Detention in American Justice 55-59 (1979) (explaining “classic” state constitutional bail clause as excluding those charged with capital offenses); A. Highmore, A Digest of the Doctrine of Bail: In Civil and Criminal Cases vii, 194-96 (1783) (explaining that some are excluded from bail so that “the safety of the people should be preserved against the lawless depredations of atrocious offenders”); Mitchell, supra note 30, at 1225-26 & n.17 (interpreting colonial bail clauses).
See 4 William Blackstone, Commentaries *294 (“[I]n . . . offences of a capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life?”); Tribe, supra note 22, at 401 (concluding that pretrial release was traditionally denied for offenses that “carried heavier penalties and therefore involved a greater temptation to flee,” and to protect accused persons from vigilante justice).
I borrow the terminology of first-, second-, and third- generation or wave bail reform from Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, U.S. Dep’t Just. 18 (Aug. 2014), http://static.nicic.gov/UserShared/2014-11-05_final_bail_fundamentals_september_8,_2014.pdf [http://perma.cc/R5TX-UWRK].
The movement culminated in the Bail Reform Act of 1966, which mandated that non-capital federal defendants be released with the least restrictive conditions that would “reasonably assure the appearance of the person” for trial. Pub. L. No. 89-465, § 3146(a), 80 Stat. 214, 214 (1966) (codified at 18 U.S.C. § 3146(a)) (repealed 1984).
Concerns about this practice were one motivation for first-wave reform. See, e.g., Hairston v. United States, 343 F.2d 313, 316 (D.C. Cir. 1965) (Bazelon, C.J., dissenting) (“Setting high bail to deny release discriminate[s] between the dangerous rich and the dangerous poor and masks the difficult problems of predicting future behavior . . . .” (internal quotation marks and citation omitted)); Bernard Botein et al., Nat’l Conference on Bail & Criminal Justice, Proceedings and Interim Report xxix (1965) (“A substantial body of opinion supports the view that setting high bail to detain dangerous offenders is unconstitutional.”).
See H.R. Rep. No. 89-1541, at 6 (1966), as reprinted in 1966 U.S.C.C.A.N. 2293, 2296 (noting that preventive detention for noncapital defendants was “beyond the scope of the present proposal and involves many difficult and complex problems which require deep study and analysis”); Marc Miller & Martin Guggenheim, Pretrial Detention and Punishment, 75 Minn. L. Rev. 335, 344 (1990) (suggesting that the decline in the use of sub rosa detention may have encouraged legislators to develop a more “express ground for detention”).
See generally, e.g., Alan M. Dershowitz, Preventive Confinement: A Suggested Framework for Constitutional Analysis, 51 Tex. L. Rev. 1277, 1278 (1973) (noting that “[l]eading scholars of the criminal law have . . . inveighed against preventive confinement”); Tribe, supra note 22, at 407 (concluding that preventive detention “violates the basic principle that an accusation of crime should not subject any man to imprisonment unless the government’s need to prosecute him compels incarceration”).
Id. at 747-48 (holding that the challenged detention regime did not categorically constitute impermissible punishment because “the incidents of detention” were not “excessive in relation to the regulatory goal Congress sought to achieve”); id. at 747 (explaining that detention regime applied only to those charged with “the most serious crimes” and included both procedural protections and a time limit); id. at 750-51 (finding that detention regime did not categorically violate substantive due process because it “narrowly focuses on a particularly acute problem in which the Government interests are overwhelming”); id. at 750 (explaining that regime operated “only on individuals who have been arrested for a specific category of extremely serious offenses” who posed a “demonstrable danger to the community,” and that the regime was further limited by an array of procedural protections).
See, e.g., Laura I. Appleman, Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth Amendment, 69 Wash. & Lee L. Rev. 1297, 1349 (2012) (“Most practitioners and scholars have concluded that the Supreme Court’s decision in Salerno pronounced the death knell for challenges to preventative detention.”); Shima Baradaran, Restoring the Presumption of Innocence, 72 Ohio St. L.J. 723, 725 (2011) (“While several legal scholars commented on bail and detention during the 1970s and 1980s, few contemporary legal scholars have analyzed the results of the changes in pretrial release standards and loss of the presumption of innocence.”); Samuel R. Wiseman, Fixing Bail, 84 Geo. Wash. L. Rev. 417, 420 (2016) (“Bail historically received wide scholarly attention, but this attention waned in the aftermath of United States v. Salerno . . . .”); Chalmous G. Reemes, Case Note, United States v. Salerno: The Validation of Preventive Detention and the Denial of a Presumed Constitutional Right to Bail, 41 Ark. L. Rev. 697, 721 (1988).
See id. at 745 (noting that “[t]he fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid”); id. at 751 (alluding to possibility that challenged procedures “might be insufficient in some particular circumstances”); see also Appleman, supra note 66, at 1349-51 (exploring how Salerno leaves open the possibility of bringing an as-applied challenge to the Bail Reform Act).
Pretrial Release and Detention: The Bail Reform Act of 1984, Bureau Just. Stat. 1 (Feb. 1988), http://www.bjs.gov/content/pub/pdf/prd-bra84.pdf [http://perma.cc/T5N8-F2AF].
Thomas H. Cohen, Pretrial Detention and Misconduct in Federal District Courts, 1995-2010, Bureau Just. Stat. 1, 2 (Feb. 2013), http://www.bjs.gov/content/pub/pdf/pdmfdc9510.pdf [http://perma.cc/3M9B-LTF8]. This percentage represents the number of defendants detained for the entire duration of a case.
See, e.g., United States v. Infelise, 934 F.2d 103, 104 (7th Cir. 1991) (“If judge and prosecutor are doing all they reasonably can be expected to do to move the case along, and the statutory criteria for pretrial detention are satisfied, then we do not think a defendant should be allowed to maintain a constitutional challenge to that detention.”); United States v. Hare, 873 F.2d 796, 800 (5th Cir. 1989) (“We reject Hare’s challenge under the excessive-bail clause of the Eighth Amendment as foreclosed by the Supreme Court’s decision in United States v. Salerno.”); United States v. Strong, 775 F.2d 504, 506 (3d Cir. 1985) (finding that “Congress intended to equate traffic in drugs with a danger to the community”).
See, e.g., State v. Anderson, 127 A.3d 100, 125 n.4 (Conn. 2015) (Palmer, J., dissenting) (“[I]t is undisputed that the trial court intentionally set a bond that far exceeded an amount that the defendant could pay solely to ensure that he would be incarcerated . . . due to his perceived dangerousness.”); Baradaran & McIntyre, supra note 11, at 547 (concluding, on the basis of empirical analysis of defendants who remain detained on money bail, that “judges are basing their [bail] decisions far more on predicted violence than on predicted flight”); Wiseman, supra note 66, at 434 (noting that efforts to limit money bail “have met stiff, often successful resistance from the powerful bail bondsman lobby”).
At midyear 2014 there were an estimated 467,500 people awaiting trial in local jails, up from 349,800 in 2000 and 298,100 in 1996. Darrell K. Gilliard & Allen J. Beck, Prison and Jail Inmates at Midyear 1996, Bureau Just. Stat. 7 (Jan. 1997), http://www.bjs.gov/content/pub/pdf/pjimy96.pdf [http://perma.cc/3NJA-PG2S]; Minton & Zeng, supra note 2, at 3. Between 1990 and 1994, 41% of pretrial releases were ROR and 24% were by cash bail. In 2002 and 2004, 23% of releases were ROR and 42% were by cash bail. Thomas H. Cohen & Brian A. Reaves, Pretrial Release of Felony Defendants in State Courts, U.S. Dep’t Just. 2 (Nov. 2007), http://www.bjs.gov/content/pub/pdf/prfdsc.pdf [http://perma.cc/H2C7-LWX5]. As of 2015, financial conditions of release were imposed in 61% of criminal cases nationwide. Jessica Eaglin & Danyelle Solomon, Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice, Brennan Ctr. for Just. 19 (June 2015), http://www.brennancenter.org/sites/default/files/publications/Racial%20Disparities%20Report%20062515.pdf [http://perma.cc/84NR-YA54]. With respect to detention for inability to post bail, see Heaton, Mayson & Stevenson, supra note 4, at 736 tbl.1, which reports that 53% of misdemeanor defendants in Harris County, Texas are detained pretrial; Mary T. Phillips et al., Annual Report 2013, N.Y.C. Crim. Just. Agency 30 (Dec. 2014), http://www.nycja.org/lwdcms/doc-view.php?module=reports&module_id=1410&doc_name=doc [http://perma.cc/G6V6-QJPX], which reports that 30% of felony defendants and 46% of non-felony defendants whose bail was $500 or less were detained until disposition; and Reaves, supra note 3, at 15, which reports that nine in ten felony defendants detained until disposition had bail set.
See, e.g., Christopher Moraff, U.S. Cities Are Looking for Alternatives to Cash Bail, Next City (Mar. 24, 2016), http://nextcity.org/daily/entry/cities-alternatives-cash-bail [http://perma.cc/R9LM-49DH]; Rational and Transparent Bail Decision Making: Moving From a Cash-Based to a Risk-Based Process, Pretrial Just. Inst. (Mar. 2012), http://www.pretrial.org/download/pji-reports/Rational%20and%20Transparent%20Bail%20Decision%20Making.pdf [http://perma.cc/G7MR-47CY].
See, e.g., Civil Rights Division, Dear Colleague Letter from Principal Deputy Assistant Att’y Gen. Vanita Gupta and Dir. Lisa Foster, U.S. Dep’t Just. (Mar. 14, 2016) http://www.justice.gov /crt/file/832461/download [http://perma.cc/YM32-EZHH] (urging courts to “consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts”); Pretrial Risk Assessment, Pretrial Just. Inst., http://pretrial.org/solutions/risk-assessment [http://perma.cc/G2TJ-6DZ8] (“Jurisdictions should have a pretrial services program or similar entity that conducts a risk assessment on all defendants in custody awaiting the initial appearance in court.”).
E.g., John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 Va. L. Rev. 391, 405-06 (2006) (defining “clinical” versus “actuarial” prediction); Barbara D. Underwood, Law and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 Yale L.J. 1408, 1423 (1979) (“A clinical decisionmaker is not committed in advance of decision to the factors that will be considered and the rule for combining them.”). The clinical/actuarial dichotomy is not a clean one. Many “actuarial” assessments require determinations about traits like drug addiction, which require some subjective judgment.
For further explanation of this process, see generally Cynthia A. Mamalian, State of the Science of Pretrial Risk Assessment, Pretrial Just. Inst. (2011), http://www.pretrial.org/wpfb-file/pji-state-of-the-science-pretrial-risk-assessment-2011-pdf [http://perma.cc/R7ZW-6XG6]; and Pretrial Risk Assessment: Science Provides Guidance on Assessing Defendants, Pretrial Just. Inst. 3-4 (May 2015) [hereinafter Pretrial Risk Assessment], http://university.pretrial.org/viewdocument/issue-brief-pretrial-1 [http://perma.cc/67PJ-6SLX].
That is, different factors may be “weighted” differently. See, e.g., Public Safety Assessment: Risk Factors and Formula, Laura & John Arnold Found. 3 (2016) [hereinafter LJAF, Public Safety], http://www.arnoldfoundation.org/wp-content/uploads/PSA-Risk-Factors-and-Formula.pdf [http://perma.cc/3CBE-5W37] (explaining weighting of different risk factors). Some instruments include a series of risk “scales” rather than binary yes-or-no factors. See, e.g., Thomas Blomberg et al., Validation of the COMPAS Risk Assessment Classification Instrument, Ctr. for Criminology & Pub. Pol’y Res. 10 (2010), http://criminology.fsu.edu/wp-content/uploads/Validation-of-the-COMPAS-Risk-Assessment-Classification-Instrument.pdf [http://perma.cc/A4PL-DXGY] (“In total, the COMPAS includes 15 different factors, each of which is measured using multiple item scales.”).
See, e.g., COMPAS Risk and Needs Assessment System: Selected Questions Posed by Inquiring Agencies, Northpointe Inc. 9 (2012), http://www.northpointeinc.com/files/downloads/FAQ_Document.pdf [http://perma.cc/JR2A-5CZH] (discussing technical support for COMPAS software). The company behind the COMPAS, Northpointe Inc., seems to have rebranded itself as equivant and no longer advertises the COMPAS as a pretrial classification tool. Northpointe’s former web address, http://www.northpointeinc.com (where it used to advertise the COMPAS suite software for multiple uses) now redirects visitors to equivant.com, which advertises the COMPAS classification system as a tool for jail/prison management only. See COMPAS Classification, equivant, http://www.equivant.com/solutions/inmate-classification [http://perma.cc/8PWZ-UP39] (“The COMPAS Classification software is a management support tool that can be interfaced with existing jail management systems to provide critical inmate management information to help support all aspects of a jail’s classification operations.”).
Baradaran & McIntyre, supra note 11, at 547 (concluding on the basis of an empirical study that predictors of flight and of future violent crime “are almost completely uncorrelated”); Gouldin, Disentangling, supra note 12, at 893, 897 (“Risk assessment tools that generate a cumulative risk of pretrial failure have limited utility.”).
Where Pretrial Improvements Are Happening, Pretrial Just. Inst. 4 (2017), http:// university.pretrial.org/viewdocument/where-pretrial-improvements-are-hap-2 [http://perma.cc/G9FE-68AN] (reporting that the PSA in now in use throughout New Jersey, Kentucky, and Arizona and in thirty additional counties); id. at 14 (reporting that Delaware, Nevada, Washington, Hawaii, and three additional counties have recently received technical assistance to implement or improve pretrial risk assessment); sources cited infra note 96 (indicating that the federal courts and at least some counties in Colorado, Florida, Indiana, Ohio, and Virginia use a pretrial risk assessment tool); see also Jessica DaSilva, Hundreds of Jurisdictions Clamor for Pretrial Risk Test, Bloomberg BNA (Aug. 2, 2016), http://www.bna.com/hundreds-jurisdictions-clamor-n73014445751 [http://perma.cc/H9T4-RRMU].
Where Pretrial Improvements Are Happening, supra note 93 (describing pretrial reform, including shift toward risk assessment, in jurisdictions nationwide); Shaila Dewan, Judges Replacing Conjecture with Formula for Bail, N.Y. Times (June 26, 2015), http://www.nytimes.com/2015/06/27/us/turning-the-granting-of-bail-into-a-science.html [http://perma.cc/4HA5 -BFGL]; Press Release, Laura & John Arnold Found., More Than 20 Cities and States Adopt Risk Assessment Tool To Help Judges Decide Which Defendants To Detain Prior to Trial (June 26, 2015), http://www.arnoldfoundation.org/more-than-20-cities-and-states-adopt -risk-assessment-tool-to-help-judges-decide-which-defendants-to-detain-prior-to-trial [http://perma.cc/P8QA-FHH8].
LJAF, Developing a National Model, supra note 7, at 4-5. There are at least six other tools in current use. They include the Federal Pretrial Risk Assessment (PTRA), Colorado Pretrial Risk Assessment Tool (CPAT), Florida Pretrial Risk Assessment Instrument (FL PRAI), Indiana Risk Assessment System-Pretrial Assessment Tool (IRAS-PAT), Ohio Risk Assessment System-Pretrial Assessment Tool (ORAS-PAT), Virginia Pretrial Risk Assessment Instrument (VPRAI), and the Correctional Offender Management Profile for Alternative Sanctions (COMPAS). See infra note 96 and Table 1.
This chart expands on a model created by the Pretrial Justice Institute, see Pretrial Risk Assessment, supra note 86, at 3, but draws directly from the following sources: Austin et al., supra note 15; Blomberg et al., supra note 88, at 15-16; The Colorado Pretrial Assessment Tool (CPAT), Pretrial Just. Inst. 15-18 (Oct. 19, 2012) [hereinafter Colorado Pretrial Assessment Tool], http://www.pretrial.org/download/risk-assessment/CO%20Pretrial%20Assessment%20Tool%20Report%20Rev%20-%20PJI%202012.pdf [http://perma.cc/6ZCR-F7AY]; Federal PTRA, supra note 14; Indiana Risk Assessment System, Univ. of Cin. at 1-1 to 1-2 (Apr. 23, 2010) [hereinafter Indiana Risk Assessment System], http://www.pretrial.org/download /risk-assessment/Indiana%20Risk%20Assessment%20System%20(April%202010).pdf [http://perma.cc/K39L-QUAH]; Edward Latessa et al., Creation and Validation of the Ohio Risk Assessment System: Final Report, Univ. of Cin. 49-50 (July 2009) [hereinafter ORAS Final Report], http://www.pretrial.org/download/risk-assessment/Ohio%20Pretrial%20Risk%20Assessment%202009.pdf [http://perma.cc/JK6L-659Q]; LJAF, Developing a National Model, supra note 7, at 3-4; LJAF, Public Safety, supra note 88; LJAF, Results, supra note 16, at 3; Marie VanNostrand, Va. Dep’t of Criminal Justice Servs., Assessing Risk Among Pretrial Defendants in Virginia: The Virginia Pretrial Risk Assessment Instrument 6 (2003); Marie VanNostrand & Kenneth J. Rose, Pretrial Risk Assessment in Virginia, Luminosity Inc. 2 (May 1, 2009), http://www.pretrial.org/download/risk-assessment/VA%20Risk%20Report%202009.pdf [http://perma.cc/E68P-JC95]; Timothy P. Cadigan et al., The Re-Validation of the Federal Pretrial Services Risk Assessment (PTRA), 76 Fed. Prob. 3 (2012); Timothy P. Cadigan & Christopher T. Lowenkamp, Implementing Risk Assessment in the Federal Pretrial Services System, 75 Fed. Prob. 30, 32 (2011); Edward J. Latessa et al., The Creation and Validation of the Ohio Risk Assessment System (ORAS), 74 Fed. Prob. 16 (2010) [hereinafter ORAS Creation and Validation]; Christopher T. Lowenkamp & Jay Whetzel, The Development of an Actuarial Risk Assessment Instrument for U.S. Pretrial Services, 73 Fed. Prob. 33 (2009); and Angwin et al., supra note 19.
At its core, a machine-learning risk assessment process is simply a more powerful and complex version of a scoring instrument. See generally Richard A. Berk et al., Forecasting Domestic Violence: A Machine Learning Approach To Help Inform Arraignment Decisions, 13 J. Empirical Legal Stud. 94 (2016) (finding that if magistrates used machine-learning methods, the rate of rearrest for those released after an arraignment for domestic violence would be cut nearly in half); Richard Berk & Jordan Hyatt, Machine Learning Forecasts of Risk To Inform Sentencing Decisions, 27 Fed. Sent’g Rep. 222 (2015) (summarizing the results of a machine-learning approach using “random forests”).
Tools use anywhere between three and six risk classes. See, e.g., LJAF, Developing a National Model, supra note 7, at 4-5; Pretrial Risk Assessment, supra note 86, at 4. Tool developers must decide where, along the curve of rearrest probability, to draw the lines between risk classes. These are called “cut points.” See, e.g., Eaglin, supra note 19, at 87-88 (explaining cut points, using the alternate phrase “cut-off points”); COMPAS Decile Cut Points Norming, Electronic Privacy Info. Ctr., https://epic.org/algorithmic-transparency/crim-justice/EPIC -16-06-23-WI-FOIA-201600805-DecileCutPointsNorming020216.pdf [http://perma.cc/63PS-8YV6].
These states retain “the traditional state constitutional approach” to bail, which guarantees a right to bail except in capital or extremely serious cases when “the proof is evident, or the presumption great.” 4 Wayne R. LaFave et al., Criminal Procedure § 12.3(b), at 55 (4th ed. 2015) (internal quotation marks omitted). Seventeen states guarantee bail except in capital cases; the other six extend the exception to treason, murder, rape, or offenses punishable by life imprisonment. Id. at 55-56. Of the remaining twenty-seven states, nine prohibit “excessive bail” without stating whether bail may be denied altogether. Id. And eighteen already have constitutional provisions authorizing pretrial preventive detention, although the provisions range widely. Id.
See Goldkamp, supra note 49, at 24, 57-74 (chronicling “great variation” in state constitutional and statutory bail provisions); Gouldin, Disentangling, supra note 12, at 866 (noting that state statutes direct bail courts to consider various factors, but “do not indicate which factors are relevant to flight risk and which are believed to predict dangerousness”); id. at 882-85 (observing that “many statutes do a poor job of guiding judges about which risks are relevant to different pretrial decisions,” and providing examples). New York is often said to exclude consideration of dangerousness, but it does authorize courts to issue protective orders as conditions of release, and other aspects of its pretrial law also suggest otherwise. See N.Y. Criminal Procedure Law § 510.30(2)(a) (McKinney 2017) (describing that considerations for pretrial commitment without bail include past criminal record and firearm use); id. §§ 530.12-14 (authorizing orders of protection); id. § 530.20(2)(a) (prohibiting recognizance or bail when a defendant is charged with a class A felony or has two previous felony convictions). Many states either permit or require courts to consider dangerousness in setting money bail, which contravenes reform principles. See supra note 116.
In fact, reforms are moving forward so fast that it is difficult to keep up. For a helpful overview of the landscape, see Where Pretrial Improvements Are Happening, Pretrial Just. Inst. (July 2017), http://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=f3d149e5-a00c-7022-3e6b-97d0af428010 [http://perma.cc/3WRN-HHM3]. Kentucky, Colorado, and New Jersey undertook comprehensive reform—including amendment of the New Jersey Constitution. See Public Safety and Offender Accountability Act, 2011 Ky. Acts 4; Pretrial Servs., Pretrial Reform in Kentucky, Admin. Off. Cts. Ky. Ct. Just. 5-8 (Jan. 2013), http://www.pretrial.org/download/infostop/Pretrial%20Reform%20in%20Kentucky%20Implementation%20Guide%202013.pdf [http://perma.cc/4FMW -TM3U]; Timothy R. Schnacke, Best Practices in Bond Setting: Colorado’s New Pretrial Bail Law, Ctr. for Legal & Evidence-Based Practices (July 3, 2013), http://www.pretrial.org /download/lawpolicy/Best%20Practices%20in%20Bond%20Setting%20-%20Colorado.pdf [http://perma.cc/6LMK-PULB]; Matt Arco, Christie Signs Bail Reform Measure, Lauds Lawmakers for Bipartisanship, NJ.com (Aug. 11, 2014, 3:34 PM), http://www.nj.com /politics/index.ssf/2014/08/christie_signs_bail_reform_measure_lauds_lawmakers_for _bipartisanship.html [http://perma.cc/X8PA-6WGA]. Alabama, Alaska, California, Connecticut, Delaware, Illinois, Indiana, Maryland, New Mexico, New York, Nevada, and Ohio are actively pursuing reform. See, e.g., Final Report, Commission To Reform Md.’s Pretrial Sys. (Dec. 19, 2014), http://goccp.maryland.gov/pretrial/documents/2014-pretrial -commission-final-report.pdf [http://perma.cc/H2DG-KYA2]; 13 Places that Saw Bail Reform in 2016, cleveland.com (Dec. 13, 2016), http://www.cleveland.com/metro/index.ssf/2016/12/13_places_that_saw_bail_reform.html [http://perma.cc/425X-6A7W]; Thomas Cole, Lawmakers Give Final OK to Bail Reform Measure, Albuquerque J. (Feb. 17, 2016, 12:09 PM), http://www.abqjournal.com/725486/lawmakers-give-final-ok-to-bail-reform-measure.html [http://perma.cc/J3EB-EA5H]; Connecticut Moves To Reform Cash Bail System for Low-Level Defendants, Between Lines (Feb. 3, 2016), http://www.btlonline.org/2016/seg/160212bf-btl-mcguire.html [http://perma.cc/66JW-7CH5]; Christopher Connelly, Texas Lawmakers, Judges Push for Major Bail Reform, Hous. Pub. Media (Mar. 10, 2017, 12:31 PM), http://www.houstonpublicmedia.org/articles/news/2017/03/10/191236/texaslawmakers -judges-push-for-major-bail-reform [http://perma.cc/L4TK-7RH7]; Sara Dorn, Developing ‘Fair’ Bail System Goal of Ohio Panel: Impact 2016: Justice for All, cleveland.com (May 18, 2016, 4:40 PM), http://www.cleveland.com/metro/index.ssf/2016/05/developing_fair_bail _system_go.html [http://perma.cc/KM74-6RNB]; Geoff Dornan, Feds Agree To Help Study and Pay for Nevada Bail Reform Project, Nev. Appeal (Feb. 11, 2016), http://www.nevadaappeal.com/news/government/feds-agree-to-help-study-and-pay-for-nevada-bail-reform-project [http://perma.cc/65BP-RF3L]; Editorial: Reforming Bail Bonds a Must for a Connecticut Second Chance Society, New Haven Reg. (Feb. 6, 2016, 10:09 PM), http://www.nhregister.com/opinion/20160206/editorial-reforming-bail-bonds-a-must-for-a-connecticut-second -chance-society [http://perma.cc/8MT6-FS48]; Kim Geiger, Bail Reform Act Signed in Illinois, Governing States & Localities (June 13, 2017), http://www.governing.com/topics/public-justice-safety/Bail-Reform-Enacted-in-Illinois.html [http://perma.cc/ZR8G -PYUE]; James C. McKinley, Jr., State’s Chief Judge, Citing ‘Injustice,’ Lays Out Plans To Alter Bail System, N.Y. Times (Oct. 1, 2015), http://www.nytimes.com/2015/10/02/nyregion /jonathan-lippman-bail-incarceration-new-york-state-chief-judge.html [http://perma.cc/XEL2-TB5H]; Press Release, Pretrial Justice Inst., PJI Commends Alaska’s Criminal Justice Reforms (July 11, 2016), http://www.pretrial.org/pji-commends-alaskas-criminal-justice -reforms [http://perma.cc/2343-AMEV]; Smart Pretrial Reform in Delaware, Pub. Welfare Found. (Apr. 22, 2015), http://www.publicwelfare.org/smart-pretrial-reform-in-delaware [http://perma.cc/P7Y8-3P5U].
Litigation is spurring considerable change. See Statement of Interest of the United States, Varden v. City of Clanton, No. 2:15-cv-34-MHT-WC (M.D. Ala. Feb. 13, 2015); Ending the American Money Bail System, Equal Just. Under L. (2014), http://www .equaljusticeunderlaw.org/wp/current-cases/ending-the-american-money-bail-system [http://perma.cc/RSW8-HY6X]; Moraff, supra note 83. At the national level, both Congress and the White House have gotten involved. See Pretrial Integrity and Safety Act of 2017, S. 1593, 115th Cong. (2017); No Money Bail Act of 2016, H.R. 4611, 114th Cong. (2016); Fact Sheet on White House and Justice Department Convening—A Cycle of Incarceration: Prison, Debt and Bail Practices, U.S. Dep’t Just. (Dec. 3, 2015), http://www.justice.gov/opa/pr/fact-sheet -white-house-and-justice-department-convening-cycle-incarceration-prison-debt-and [http://perma.cc/GX2K-KGP4].
Many hold that the purely preventive restraint of responsible actors is never permissible, no matter the risk they pose, because such restraint denies a person’s autonomy. See sources cited supra notes 33, 38; see also, e.g., Kimberly Kessler Ferzan, Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible, 96 Minn. L. Rev. 141, 141-42 (2011) (describing this orthodoxy). Other scholars accept that the purely preventive restraint of responsible actors may be permissible in some circumstances, but that substantial preventive intrusions could only be permissible to mitigate serious risk. See, e.g., Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 348 (2015) (arguing that any preventive restraint should be “an appropriately tailored means of preventing future harm, given its cost in liberty”); Christopher Slobogin, A Jurisprudence of Dangerousness, 98 Nw. U. L. Rev. 1, 4 (2003) (“The proportionality principle requires that the degree of danger be roughly proportionate to the proposed government intervention.”).
420 U.S. at 114 (“[W]e hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.”). If a judicial determination of probable cause were sufficient to justify any pretrial restraint, Salerno would have been an easy case indeed! Accord Albert W. Alschuler, Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, 85 Mich. L. Rev. 510, 560 (1986) (“Gerstein did not hold that defendants could be imprisoned to protect the community from crime simply because judges had found probable cause for their arrests.”).
Gerstein v. Pugh, 420 U.S. 103, 111 (1975) (defining probable cause as “facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense’” (alteration in original) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964))). Gerstein does not explicitly specify that probable cause for an already adjudicated charge is inadequate to support a new arrest, but that is obvious from the language and context of the decision.
Kansas v. Hendricks, 521 U.S. 346, 358 (1997) (emphasis added); see also Kansas v. Crane, 534 U.S. 407, 412 (2002) (emphasizing the “constitutional importance” of the control criterion); cf. Foucha v. Louisiana, 504 U.S. 71 (1992) (holding that substantive due process prohibited the continued confinement of an insanity acquitee who remained dangerous but who no longer suffered from any mental disorder).
It is often impossible to distinguish between someone who cannot control her impulses and someone who does not. The Court itself acknowledged this in Kansas v. Crane. 534 U.S. at 412 (“The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk.” (quoting the American Psychiatric Association, Statement on the Insanity Defense 11 (1982), reprinted in G. Melton, J. Petrila, N. Poythress, & C. Slobogin, Psychological Evaluations for the Courts 200 (2d ed. 1997))). The Court therefore clarified that a civil commitment regime need not require proof “of total or complete lack of control. . . . It is enough to say that there must be proof of serious difficulty in controlling behavior.” Id. at 411-13. But most situations where a person poses demonstrable danger will entail evidence of “serious difficulty in controlling behavior.” Id. at 413.
Id. at 81 (“[T]he duration of confinement under the Bail Reform Act of 1984 (Act) was strictly limited . . . .”); id. at 82 (“It was emphasized in Salerno that the detention we found constitutionally permissible was strictly limited in duration.” (citing Salerno, 481 U.S. at 747 (1987) (“The arrestee is entitled to a prompt detention hearing . . . , and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act.”))).
Id. at 82 (“Here, in contrast, the State asserts that . . . [Foucha] may be held indefinitely.”); id. at 102 (Thomas, J., dissenting) (“[T]he Court suggests—and the concurrence states explicitly—that the constitutional flaw with this scheme is not that it provides for the confinement of sane insanity acquittees, but that it (allegedly) provides for their ‘indefinite’ confinement in a mental facility.”).
Id. at 87 (O’Connor, J., concurring) (“I do not understand the Court to hold that Louisiana may never confine dangerous insanity acquittees after they regain mental health.”); id. (opining that such confinement might be permissible if “the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee’s continuing dangerousness.”).
See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973) (“[I]n the case of a lawful custodial arrest a full search of the person is . . . a ‘reasonable’ search under [the Fourth] Amendment.”); Chimel v. California, 395 U.S. 752, 763 (1969) (“[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons . . . .”).
Maryland v. Buie, 494 U.S. 325, 337 (1990) (“The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief . . . that the area to be swept harbors an individual posing a danger to those on the arrest scene.”).
See, e.g., Colorado v. Bertine, 479 U.S. 367, 369 (1987) (“We are asked to decide whether the Fourth Amendment prohibits the State from proving [the criminal] charges with the evidence discovered during the inventory search of respondent’s van. We hold that it does not.”); United States v. Edwards, 415 U.S. 800, 807 (1974) (holding that “once an accused has been lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of arrest may lawfully be searched and seized without a warrant”).
See, e.g., Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1523 (2012) (holding that certain search procedures, which included strip searches, were constitutionally reasonable); Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (upholding the constitutionality of strip searches of inmates); Edwards, 415 U.S. at 803 (“[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”).
See, e.g., Samson, 547 U.S. at 850-57 (discussing parolees); Knights, 534 U.S. at 119-22 (discussing probationers); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-56 (1995) (discussing public-school students); Schall v. Martin, 467 U.S. 253, 265 (1984) (discussing juveniles); Bell, 441 U.S. at 546 (discussing detainees); see also Barry Friedman & Cynthia Benin Stein, Redefining What’s “Reasonable”: The Protections for Policing, 84 Geo. Wash. L. Rev. 281, 349 (2016) (discussing cases where the Court justified “suspicion-based or suspicionless” searches of people in certain circumstances “primarily by arguing that people in schools, prisons, and government workplaces have reduced expectations of privacy”).
133 S. Ct. at 1978 (“The expectations of privacy of an individual taken into police custody ‘necessarily [are] of a diminished scope.’”) (quoting and citing Bell, 441 U.S. at 557); id. at 1979 (asserting that the Fourth Amendment reasonableness inquiry “considers” the “diminished expectations of privacy of the arrestee”).
Nor has it received much attention from scholars or lower courts. The Ninth Circuit has confronted the question but without much clarity. Compare United States v. Scott, 450 F.3d 863, 872-74 (9th Cir. 2006) (noting that “[p]eople released pending trial, [in] contrast [to probationers], have suffered no judicial abridgment of their constitutional rights,” and thus their “privacy and liberty interests [a]re far greater than a probationer’s”) with Scott, 450 F.3d at 885 (Bybee, J., dissenting) (“Scott’s reasonable expectation of privacy may be somewhat greater than that of a probationer, parolee, or pre-sentence releasee, but it is less than that of an ‘ordinary citizen.’”). Only one academic work squarely addresses this point. See Andrew J. Smith, Note, Unconstitutional Conditional Release: A Pyrrhic Victory for Arrestees’ Privacy Rights Under United States v. Scott, 48 Wm. & Mary L. Rev. 2365, 2389 (2007) (“The lack of a clear definition of a pretrial arrestee’s status is a lacuna in criminal law that must be filled.”). The Court has established that detainees’ rights are necessarily limited by virtue of being detained. Bell, 441 U.S. at 546. At the same time, pretrial detainees retain some rights that convicted detainees do not. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015) (“[P]retrial detainees (unlike convicted prisoners) cannot be punished at all . . . .”).
See Schall v. Martin, 467 U.S. 253, 265 (1984) (“[Children] are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae.”). The quasi-custody rationale is more attenuated for people serving noncustodial sentences, but still plausible if release on probation or parole is a privilege the state grants in lieu of lawful detention, rather than a right. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (“The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.”).
See, e.g., Samson v. California, 547 U.S. 843, 848-49 (2006) (“[B]y virtue of their status alone, probationers ‘do not enjoy “the absolute liberty to which every citizen is entitled,”’ justifying the ‘impos[ition] [of] reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.’” (citations omitted) (quoting United States v. Knights, 534 U.S. 112, 119 (2001))).
See, e.g., Gant, 556 U.S. at 344, 351 (holding that warrantless automobile searches violate the Fourth Amendment when not necessary to protect officer safety or preserve evidence of the crime of arrest); Knowles v. Iowa, 525 U.S. 113, 118-19 (1998) (rejecting warrantless search pursuant to citation, “where the concern for officer safety is not present to the same extent and the concern for destruction or loss of evidence is not present at all”); Mincey v. Arizona, 437 U.S. 385, 390-93 (1978) (holding warrantless search of murder defendant’s home that was not “justified by any emergency threatening life or limb” to violate the Fourth Amendment); id. at 391 (“It is one thing to say that one who is legally taken into police custody has a lessened right of privacy in his person. It is quite another to argue that he also has a lessened right of privacy in his entire house.” (citations omitted)).
King, 133 S. Ct. at 1970; see also id. at 1982 (Scalia, J., dissenting) (“The Court alludes at several points to the fact that King was an arrestee . . . . But the Court does not really rest on this principle, and for good reason . . . . Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of ‘identifying’ King.” (footnote omitted)).
If subjective expectations could justify state action, the status quo would be self-justifying. Thus, the Court has acknowledged that the “reasonable expectations” prong of the traditional Katz Fourth Amendment analysis turns on what we think people should expect and tolerate, not what they actually do. See, e.g., Hudson v. Palmer, 468 U.S. 517, 525 n.7 (1984) (“[C]onstitutional rights are generally not defined by the subjective intent of those asserting the rights. The problems inherent in such a standard are self-evident.” (citation omitted)); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (explaining that subjective expectation must “be one that society is prepared to recognize as ‘reasonable’”); Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations, 82 U. Chi. L. Rev. 113, 114-15 (2015) (arguing that the subjective-expectations prong of the Katz test is a “phantom doctrine” that the Court should “formally abolish”).
It is important to clarify that this is an argument about the doctrinal rule, not the Court’s application of it. The Court has found intrusions to be necessary to the adjudicative process that patently are not—most obviously, the DNA search in King. Such decisions have had the effect of limiting defendants’ liberty and privacy far more than the administrative demands of the process require. It is the rule itself, however, that should govern future cases.
I admittedly use the word “moral” here quite loosely, to denote normative arguments that invoke rights or duties (in contrast to the “practical,” or instrumentalist, arguments explored in Section II.C). In other words, this Section addresses arguments that sound in deontological ethics, and the next Section addresses arguments that sound in consequentialist ethics.
See Mitchell N. Berman, Two Kinds of Retributivism, in Philosophical Foundations of Criminal Law 433, 437-38 (R.A. Duff & Stuart P. Green eds., 2011) (describing ambiguities latent in the concept of desert, and identifying the “dominant view” among retributivists as the notion that guilty people deserve to suffer); see also, e.g., Richard L. Lippke, Preventive Pre-Trial Detention Without Punishment, 20 Res Publica 111, 122 (2014) (suggesting that preventive detention may be justified if the state can demonstrate that there is “substantial evidence” of guilt on a serious charge); Stephen J. Morse, Protecting Liberty and Autonomy: Desert/Disease Jurisprudence, 48 San Diego L. Rev. 1077, 1124 (2011) (suggesting that pretrial detention “is justified by probable cause to believe that the accused has culpably committed a criminal offense”).
Thanks to Mitch Berman for this point. I have previously—and incorrectly—asserted that any judgment of forfeiture necessarily entails a judgment of desert. See Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 337 (2015) (“Only by blameworthy conduct can a person forfeit rights.”).
This argument rests on two premises. The first is that official condemnation is the defining feature of state punishment. See, e.g., Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 404 (1958) (“What distinguishes a criminal from a civil sanction . . . is the judgment of community condemnation which accompanies and justifies its imposition.”); Mayson, supra note 212, at 318 & n.87 (proposing that “punishment is hard treatment inflicted as a putatively just consequence of blameworthy conduct” and collecting sources that support this view); Tribe, supra note 22, at 379 n.30 (“[I]t is the expression of community condemnation rather than any necessarily retributive purpose that characterizes a particular disability as punishment.”). The second premise is that any official judgment of guilt entails official condemnation. If these two premises are true, it follows that any deprivation imposed by virtue of guilt constitutes punishment, and cannot constitutionally be imposed before trial. In other work, I have argued for a punishment test along these lines. See Mayson, supra note 212, at 345-46 (proposing that courts classify a deprivation of liberty as punishment whenever the state “claims primary authorization from a judgment of culpability,” and otherwise classify deprivations as regulatory).
See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015) (noting that “pretrial detainees (unlike convicted prisoners) cannot be punished at all”); Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.”).
Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813); see also Harmon, supra note 124, at 310 (2016) (noting that probable cause “is almost by definition not enough proof to establish blameworthiness”). The function of the probable cause determination is not to establish blameworthiness, but rather “to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime.” Brinegar v. United States, 338 U.S. 160, 176 (1949).
Winship, 397 U.S. at 367; cf. Kimberly Kessler Ferzan, Preventive Justice and the Presumption of Innocence, 8 Crim. L. & Phil. 505, 515, 523 (2014) (defending the right of states to restrain “culpable aggressors” who threaten future harm, but concluding that states should be required to prove the predicate criteria for culpability beyond a reasonable doubt).
Perhaps a deprivation should not be classified as “punishment” unless it has a purpose to censure or cause suffering. Cf. Mitchell N. Berman, The Justification of Punishment, in The Routledge Companion to Philosophy of Law 143 (Andrei Marmor ed., 2012) (defining punishment as infliction of hard treatment “because of, and not despite” the suffering it will cause); Douglas Husak, Lifting the Cloak: Preventive Detention as Punishment, 48 San Diego L. Rev. 1173, 1189 (2011) (“[A] sanction is not a punishment without a purpose to deprive and censure.”). The Supreme Court, moreover, has not held that any deprivation imposed by virtue of guilt constitutes punishment. According to current doctrine, a pretrial deprivation is “punishment” if it is inflicted with “punitive” intent, or if it is irrational or excessive as a regulatory measure. Kingsley, 135 S. Ct. at 2473-74; United States v. Salerno, 481 U.S. 739, 746-47 (1987); Bell, 441 U.S. at 538-39.
The guilt of the accused is not the direct justification for arrest, or for other intrusions necessary to the administration of criminal proceedings. The direct justification for those intrusions is the state’s legitimate interest in prosecution, which hinges partly on the likelihood of conviction. In other words, some likelihood of demonstrable guilt justifies the state in undertaking criminal proceedings, which may require some restriction of the accused’s liberty. The probable-cause determination is addressed to the question of whether the evidence is adequate to justify the state in pursuing prosecution. To invoke the content and strength of the evidence against the accused as practical justification for prosecution (and the deprivations of liberty it entails) is one thing. To invoke the accused’s guilt as moral justification for deprivations to prevent unrelated future crime is quite another. What constitutes an appropriate evidentiary standard for the former has no clear bearing on what constitutes an appropriate evidentiary standard for the latter.
This illustrates a limitation of the moral-predicate model. Some shoplifters are more dangerous than some murderers. Presuming that shoplifting is less of a moral predicate than murder, and authorizes less preventive restraint, the state must either forego effective restraint of dangerous shoplifters or impose greater restraint than is warranted. See Darin Clearwater, “If the Cloak Doesn’t Fit, You Must Acquit”: Retributivist Models of Preventive Detention and the Problem of Coextensiveness, 11 Crim. L. & Phil. 49 (2017); Robinson, supra note 39, at 1432 (arguing that “[s]egregation of the punishment and prevention functions offers a superior alternative”).
Kimberly Ferzan and Alec Walen, for instance, hold that culpability can eliminate a person’s right against preventive interference, but would also require the state to demonstrate that any restraint is reasonable and necessary to accomplish its preventive goals. See Ferzan, supra note 123, at 143-45; Alec Walen, A Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity, 48 San Diego L. Rev. 1229, 1240 (2011).
Once again, this principle does not preclude the state from invoking a person’s riskiness as justification for depriving her of liberty nor from considering the strength of pending allegations in assessing that risk. What it prohibits is invoking guilt as an independent, or additional, justification—unless it is proven beyond a reasonable doubt. Nothing in this Article contests the notion that a conviction can serve as a moral predicate for preventive restraint. See, e.g., Husak, supra note 234, at 1186-87 (arguing that the state can pursue incapacitative ends through punishment); Walen, supra note 237, at 1240 (arguing that “one element of a justified punishment can be the temporary loss of the normal immunity to [long-term preventive detention]”).
On this view, pretrial crime is akin to a “state-created danger.” See, e.g., Morrow v. Balaski, 719 F.3d 160, 167 (3d Cir. 2013) (“[W]e have recognized that the Due Process Clause can impose an affirmative duty to protect if the state’s own actions create the very danger that causes the plaintiff’s injury.”).
See S. Rep. No. 98-225 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3329-30. The Senate Report for the Bail Reform Act of 1984 also referred to, for example, “the problem of how to change current bail laws to provide appropriate authority to deal with dangerous defendants seeking release,” as if pretrial liberty were a privilege rather than the default. Id. at 6, as reprinted in 1984 U.S.C.C.A.N. 3182, 3189 (emphasis added).
This reasoning aligns with tort-law doctrines that impose a duty on certain actors, like landlords or therapists, to minimize third-party crime risk when they have notice of likely crime and a unique opportunity to prevent it. See, e.g., Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 481 (D.C. Cir. 1970) (holding that a landlord’s duty of care includes taking steps “to minimize the predictable risk to his tenants” from third-party crime, where he had notice of the risk and “the exclusive power to take preventive action”); Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 347 (Cal. 1976) (holding that therapists may have a duty of care to warn likely victims of foreseeable violence by their patients).
Stephen Schulhofer has suggested a different heightened-duty argument. He posits that the pretrial phase might represent a “gap” where the threat of punishment is inadequate to prevent crime, such that the state has special authority (and responsibility) to engage in preventive restraint. Stephen J. Schulhofer, Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws, 7 J. Contemp. Legal Issues 69, 93-94 (1996). It is questionable, however, whether the pretrial phase represents such a gap. Schulhofer notes that some defendants are unlikely to be deterred by the threat of additional punishment from committing pretrial crime. Id. at 86-87. Relatedly, Christopher Slobogin has advocated for the notion of “undeterrability” to serve as a criterion for preventive detention. Slobogin, supra note 123, at 48 (“The undeterrability criterion better describes the ‘gap’ population that cannot be addressed by the criminal law—those people who are impervious to its dictates.”). But there are many people for whom deterrence is ineffective, and Schulhofer does not explain why we should treat defendants differently from anyone else who is equally unlikely to heed the threat. In the end, he seems to conclude that the pretrial phase does not represent a “gap” in the competence of criminal-law deterrence at all. See Schulhofer, supra, at 96 (concluding that “[i]n the absence of mental illness sufficiently serious to preclude criminal responsibility,” predictive confinement is impermissible).
For a defense of short-term pretrial preventive detention on cost-benefit grounds, see Walen, supra note 237, at 1238 (arguing that some defendants “may justifiably be detained for the sake of the general welfare because the burden on them is not too great, and we may ask reasonably small sacrifices of people for the sake of the general welfare”).
There is a sizable economic literature that has endeavored, with increasing sophistication, to quantify these costs. See Aaron Chalfin, Economic Costs of Crime, in 2 The Encyclopedia of Crime and Punishment 543, 544-48 (Wesley G. Jennings ed., 2016) (describing alternate methodologies to quantify “external” and “social” costs of crime and surveying existing cost estimates).
Many crimes also have serious costs for the perpetrator. It is debatable whether these, if deserved, ought to count in the calculus. See, e.g., Berman, supra note 180, at 269-70 (explaining the retributivist position that “the state of affairs in which offenders experience the suffering they deserve is not bad”).
Detention, in particular, may entail serious physical, psychological, and reputational harm. See, e.g., Barker v. Wingo, 407 U.S. 514, 532-33 (1972) (cataloguing the costs of detention to detainees); Appleman, supra note 66, at 1318-21 (describing abysmal jail conditions, as well as the effects of pretrial detention on families and on a defendant’s case); Shima Baradaran Baughman, Costs of Pretrial Detention, 97 B.U. L. Rev. 1, 15 (2017) (explaining that detention may entail “loss of freedom, income, and housing; childcare costs; loss and theft of property; strain on intimate relationships;” and “potential violent or sexual assault”). The sole recent attempt to quantify this loss of liberty is David S. Abrams & Chris Rohlfs, Optimal Bail and the Value of Freedom: Evidence from the Philadelphia Bail Experiment, 49 Econ. Inquiry 750, 751, 766 tbl.7 (2011), which interprets bail-posting behavior as revealing defendants’ valuation of their freedom, and concludes that average valuation was $1,050 for 90 days of liberty. But see David S. Abrams, The Imprisoner’s Dilemma: A Cost-Benefit Approach to Incarceration, 98 Iowa L. Rev. 905, 950 n.182 (2013) (acknowledging that this estimate is “likely to be a lower bound, since some offenders are likely credit constrained”).
See, e.g., Christopher T. Lowenkamp et al., Arnold Found., The Hidden Costs of Pretrial Detention 4 (2013) (finding that longer pretrial detention increases the likelihood of future crime); Heaton, Mayson & Stevenson, supra note 4, at 767 (finding that pretrial detention of misdemeanor defendants substantially increases the likelihood of a new criminal charge within eighteen months).
See Angwin et al., supra note 19; Harcourt, supra note 19, at 240 (“[R]elying on prediction instruments to reduce mass incarceration will surely aggravate what is already an unacceptable racial disproportionality in our prisons.”); Starr, supra note 19, at 836-37 (noting that the use of “demographic, socioeconomic, and family- and neighborhood-related characteristics” as indicators of risk will “further demographically concentrate” the impact of mass incarceration).
See Allen v. Illinois, 478 U.S. 364, 380 (1986) (Stevens, J., dissenting) (arguing that if a state can avoid criminal procedural protections by deeming a proceeding “civil,” then “nothing would prevent a State from creating an entire corpus of ‘dangerous person’ statutes to shadow its criminal code”); cf. Allen & Laudan, supra note 39, at 796 n.47 (“The Supreme Court often pretends that jail time served while on bail is not ‘punishment’ but simply community protection; that distinction in this context seems strained at best.”).
Sonja Starr has shown that the use of an actuarial risk instrument may lead decisionmakers to weigh risk more heavily than they otherwise would. Starr, supra note 19, at 867-70 (describing a classroom experiment demonstrating this effect); see also Harcourt, Against Prediction, supra note 19, at 31-34, 173-92 (arguing that use of predictive instruments can distort “conceptions of justice”). Relatedly, risk-based decision-making may be particularly susceptible to framing effects. See Nicholas Scurich & Richard S. John, The Effect of Framing Actuarial Risk Probabilities on Involuntary Civil Commitment Decisions, 35 Law & Hum. Behav. 83 (2011) (reporting that the majority of study participants deemed a twenty-six percent risk of violence to warrant civil commitment, but deemed civil commitment unwarranted if risk was expressed as a seventy-four percent chance of no violence). Lastly, and critically, criminal justice system actors, like judges and prosecutors, may lack the resources or technical sophistication necessary to identify flaws in predictive algorithms.
Using a large dataset from Harris County (including Houston, Texas), for example, Paul Heaton, Megan Stevenson, and I recently found that approximately seventeen percent of the detained misdemeanor defendants who pled guilty would not have been convicted at all had they been released rather than detained pretrial. Heaton, Mayson & Stevenson, supra note 4, at 771. Many such people plead guilty in exchange for a “time served” sentence, which means immediate release. Id. at 715 n.15 and accompanying text, 771 n.162 and accompanying text.
Reaves, supra note 3, at 24 (66% of felony defendants in the 75 largest urban jurisdictions in 2009 were convicted); id. at 29 (36% of those defendants—or 24% of the total—were sentenced to prison). An additional 37% of those convicted were sentenced to jail, id., but these sentences likely reflect “time served” sentences that were the result of pretrial detention rather than the sentence these defendants would have received had they been released pretrial. See id. at 31 (reporting mean and median jail sentences of five and four months, respectively).
To the author’s knowledge, there is no reliable national estimate of what percentage of U.S. criminal cases are felonies (versus misdemeanors), but the best available evidence—a 2010 survey conducted by the National Center for State Courts—suggests that it is around a quarter. See Robert C. LaFountain et al., Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads, Nat’l Ctr. for St. Cts. 24 (2012), http://www.court statistics.org/other-pages/~/media/microsites/files/csp/data%20pdf/csp_dec.ashx [http:// perma.cc/AF2X-GGV5] (reporting that misdemeanors represent more than three-quarters of state court caseloads in reporting states).
See Adam J. Kolber, Against Proportional Punishment, 66 Vand. L. Rev. 1141, 1147 (2013) (explaining that pretrial detainees “who are subsequently convicted usually have their sentences shortened by the amount of time they spent in detention,” and citing statutory provisions that mandate such “credit for time served”).
E.g., 18 U.S.C. § 3585 (2012) (providing that “[a] defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences,” but providing no such credit for non-custodial pretrial restraint); 42 Pa. Cons. Stat. Ann. § 9760 (West 2017) (“Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.”); Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (“[T]ime on probation does not qualify for credit.”); Commonwealth v. Kyle, 874 A.2d 12, 22 (Pa. 2005) (“[W]e hold that time spent subject to electronic monitoring at home is not time spent in ‘custody’ for purposes of credit under Section 9760.”).
The reality is that pretrial detention does currently function as pre-punishment. That should change. See Lippke, supra note 209, at 114 (suggesting criteria to ensure that detention is nonpunitive). We might even rethink the practice of crediting pretrial detention as “time served.” It fosters the illusion that pretrial detention has no cost in liberty, while reinforcing the impression that pretrial detainees are guilty people getting a head start on their sentences. What if, instead, the state was required to compensate all pretrial detainees for their loss of liberty? See Michael Louis Corrado, Punishment and the Wild Beast of Prey: The Problem of Preventive Detention, 86 J. Crim. L. & Criminology 778, 814 (1996) (arguing that it would be “both fair and efficient” to compensate preventive detainees); Jeffrey Manns, Liberty Takings: A Framework for Compensating Pretrial Detainees, 26 Cardozo L. Rev. 1947, 1953 (2005).
The average arrestee is not acutely dangerous. The only two recent published studies that have measured the rate of arrest for violent crime among bailees have documented rates of 1.8-1.9%. Qudsia Siddiqi, Predicting the Likelihood of Pretrial Failure To Appear and/or Re-Arrest for a Violent Offense Among New York City Defendants: An Analysis of the 2001 Dataset (Final Report), N.Y. Crim. Just. Agency (2009), http://www.nycja.org/lwdcms/doc-view.php?module= reports&module_id=629&doc_name=doc [http://perma.cc/3B7Q-3V3F] (finding that, in a sample of 26,821 defendants released pretrial, the rate of rearrest for violent felony was 1.8% and the rate of rearrest for “violent offense” including misdemeanors was 3.0%); Baradaran & McIntyre, supra note 11, at 527 (analyzing Bureau of Justice data on state-court felony cases). By “high-risk arrestee” I mean someone who would be classified as high risk by an existing pretrial risk assessment tool.
See, e.g., Integrated Data Systems (IDS), Actionable Intelligence for Soc. Pol’y, http://http://www.aisp.upenn.edu/integrated-data-systems [http://perma.cc/RSS5-CKZ5].
See generally Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. Pa. L. Rev. 327, 331-32 (2015) (analyzing the interplay between big data and Fourth Amendment doctrine); Michael L. Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, 164 U. Pa. L. Rev. 871, 878 (2016) (describing automated suspicion algorithm technology and analyzing it under existing Fourth Amendment doctrine).
See, e.g., Ferguson, supra note 280, at 385-86 (describing the use of predictive analytics to identify people at highest risk of committing or suffering gun violence in Chicago); Journalism for Social Change, Pennsylvania County Leads in Use of Big Data To Stem Child Abuse, Probes Ethics First, Chron. of Soc. Change (May 26, 2016), http://chronicleofsocialchange .org/news-2/pennsylvania-county-leads-globe-uses-big-data-stem-child-abuse-not -without-probing-ethics-first [http://perma.cc/4228-EJNT] (describing a data initiative to identify children at highest risk of future abuse—and, implicitly, caregivers at highest risk of committing abuse).
The prospect of governments maintaining and analyzing comprehensive data dossiers on all of their citizens also raises privacy concerns and underlines the question of whether Fourth Amendment analysis should be different for defendants versus non-defendants. Certainly, the needs of criminal prosecution itself justify some special intrusions into defendants’ privacy. If the intrusion is not necessitated by the prosecution, however, the standards for intrusion should not be more relaxed for defendants than for others. See supra Sections II.A and II.B. Thanks to Jessica Eaglin for raising this point.
See, e.g., Civil Rights Div., Investigation of the Baltimore City Police Department, U.S. Dep’t Just. 55-61 (Aug. 10, 2016) http://www.civilrights.baltimorecity.gov/sites/default/files/20160810_DOJ%20BPD%20Report-FINAL.pdf [http://perma.cc/Q89K-CL66] (documenting dramatic racial disparities in the Baltimore City Police Department’s arrest practices); Civil Rights Div., Investigation of the Ferguson Police Department, U.S. Dep’t Just. 4 (Mar. 4, 2015) http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04 /ferguson_police_department_report.pdf [http://perma.cc/8RRP-U86Q] (“Ferguson’s approach to law enforcement both reflects and reinforces racial bias.”); Frank McIntyre & Shima Baradaran, Race, Prediction, and Pretrial Detention, 10 J. Empirical Legal Stud. 741, 759 (2013) (“Drug usage and sale rates among whites and blacks are often similar but systematically more blacks are arrested for drug possession and trafficking crimes than whites.”).
Baughman, supra note 257, at 18. Baughman’s estimate admittedly excludes the component costs most difficult to quantify. She relies, furthermore, on the single existing estimate of the value of defendants’ freedom (by Abrams & Rohlfs), which its authors acknowledge is likely to be an underestimate. Id. at 6 n.26, 18 fig.2; see also Abrams & Rohlfs, supra note 257, at 751 (noting that, because their methodology relies on bail-posting behavior as revealing the price defendants place on their own freedom, defendants’ “credit constraints” may affect their estimate); David S. Abrams and David Rohlfs, Web Appendix for “Optimal Bail and the Value of Freedom: Evidence from the Philadelphia Bail Experiment,” 3 (Aug. 2007), available under “Supporting Information” at http://onlinelibrary.wiley.com/doi/10.1111/j.1465-7295.2010.00288.x/abstract [http://perma.cc/B733-6S2V] (acknowledging that, because authors’ data “do not allow for identifying the effects of credit constraints . . . our estimates may understate defendants’ true valuations of freedom”); supra note 254 and accompanying text (describing the social costs of detention).
In 2016 dollars ($107,020 in 2008 dollars, as reported by the authors). This includes tangible and intangible costs, to both the victim and society. Kathryn E. McCollister et al., The Cost of Crime to Society: New Crime-Specific Estimates for Policy and Program Evaluation, 108 Drug & Alcohol Dependence 98, 98-99 (2010) (synthesizing prior research and updating cost estimates for major crimes); see also Baughman, supra note 257, at 11 tbl.2 (reporting that cost estimates for assault range from $14,715-$158,250 in 2014 dollars, or $15,019-$161,126 in 2016 dollars); Paul Heaton, Hidden in Plain Sight: What Cost-of-Crime Research Can Tell Us About Investing in Police, 5 tbl.1 (RAND Corp., Occasional Paper No. 279, 2010) (reporting that the average of three prior estimates of the cost of “serious assault” was $87,238 in 2007 dollars, or $101,415 in 2016 dollars).
Harmon, supra note 124, at 319 (estimating the cost of arrest at $150 in officer time alone, i.e., excluding booking, transportation, or court costs); Christian Henrichson & Sarah Galgano, A Guide to Calculating Justice-System Marginal Costs, Vera Inst. Just. 19-20 (May 2013), https://storage.googleapis.com/vera-web-assets/downloads/Publications/a-guide-to-calculating-justice-system-marginal-costs-1/legacy_downloads/marginal-costs-guide.pdf [http://perma.cc/P9EZ-8GZ6] (reporting estimates that range from $165 to $880 for arrests for non-violent crime).
To be cost-justified, detention that costs $412,000 must prevent 3.439 aggravated assaults; detention that costs $403,000 must prevent 3.364 aggravated assaults. For the detention of ten people to prevent 3.439 assaults, the ten must each present (on average) a 34.39% likelihood of committing an assault; to prevent 3.364, they must each present a 33.64% likelihood.
Five studies published in the last two years, deploying quasi-experimental design, have documented this effect. Heaton, Mayson & Stevenson, supra note 4; Will Dobbie, Jacob Goldin & Crystal Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges 3 (Nat’l Bureau of Econ. Research, Working Paper No. 22511, 2016), http://www.nber.org/papers/w22511.pdf [http://perma.cc/Q4KD-GTKZ]; Arpit Gupta, Christopher Hansman & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 22 (Columbia Law & Econ. Working Paper No. 531, 2016), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2774453 [http://perma.cc/2FGR -5WPB]; Emily Leslie & Nolan G. Pope, The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments 34-35 (Nov. 9, 2016) (unpublished manuscript), http://home.uchicago.edu/~npope/pretrial_paper.pdf [http://perma.cc/GV7S-H7GU]; Stevenson, supra note 4.
See, e.g., Samuel R. Gross & Barbara O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927, 930-31 (2008) (noting that “it is entirely possible that most wrongful convictions . . . are based on negotiated guilty pleas to comparatively light charges” to avoid “prolonged pretrial detention”); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1316 (2012) (“[E]very year the criminal system punishes thousands of petty offenders who are not guilty.”).
See supra note 36 and accompanying text. Sex offender commitment statutes condition commitment on a “mental disorder” that renders a person substantially unable to refrain from harmful sexual behavior, but as commentators have noted, this conditioning is broad enough to reach most people at particularly high risk of committing serious crime. See Slobogin, supra note 37, at 123-26.
See generally Jennifer C. Daskal, Pre-Crime Restraints: The Explosion of Targeted, Non-Custodial Prevention, 99 Cornell L. Rev. 327, 327 (2014) (exploring “terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders”); Mayson, supra note 123 (examining the collateral consequences of criminal convictions as predictive risk regulations).
See, e.g., Sara Gordon, The Danger Zone: How the Dangerousness Standard in Civil Commitment Proceedings Harms People with Serious Mental Illness, 66 Case W. Res. L. Rev. 657, 673 (2016) (“Because many state statutes do not define ‘danger,’ the statutes themselves put the burden on clinicians to substitute their own judgment for what a finding of dangerousness should encompass.” (citation omitted)); Fredrick E. Vars, Delineating Sexual Dangerousness, 50 Hous. L. Rev. 855, 869-70 (2013) (“Notwithstanding three major United States Supreme Court cases addressing the constitutionality of sex offender commitment, the minimum probability of harm has not been squarely decided.”); id. at 871 (“State statutes and judicial opinions have set the probability of recidivism bar at different heights.”).
Cf. Stephen J. Morse, Neuroprediction: New Technology, Old Problems, 8 Bioethica F. 128, 128 (2015) (“Deciding what rate and types of error are justifiable is a normative issue that can be resolved only by balancing the various interests implicated by the prediction, including the consequences to the subject and society and the cost of producing the prediction.”).
See, e.g., Minn. Stat. Ann. § 253B.02 (West 2017) (limiting involuntary commitment to a person who “poses a substantial likelihood of physical harm to self or others”); State v. B.B., 245 P.3d 697, 701 (Or. Ct. App. 2010) (“To establish that a person is ‘dangerous to self,’ the state must present evidence that the person’s mental disorder would cause him or her to engage in behavior that is likely to result in physical harm to himself or herself in the near term.” (internal alterations and quotation marks omitted)).
A six-month period is a popular time period for assessing pretrial risk, because it is, at once, short enough to make data collection and assessment feasible and long enough to accommodate the average pretrial period for released defendants in many jurisdictions. See, e.g., LJAF, Results, supra note 16 (evaluating the success of the risk assessment tool in its first six months of use); Cohen & Reaves, supra note 82, at 7 (“Released defendants waited a median of 127 days from time of arrest until adjudication . . . .”). One could argue that some property harms are more serious than some physical harm, such that the optimal risk standard would encompass serious non-bodily harms as well. The problem is the difficulty of determining what constitutes a sufficiently serious non-bodily harm.
Cal. Const. art. I, § 12(b) (“great bodily harm to others”); Fla. Const. art. I, § 14 (“physical harm to persons”); Ill. Const. art. I, § 9 (“a real and present threat to the physical safety of any person”); Ohio Const. art. I, § 9 (“serious physical harm”); Vt. Const. ch. II, § 40 (“substantial threat of physical violence”); Wis. Const. art. I, § 8(2) (“serious bodily harm”); see also supra note 119.
See Ariz. Const. art. II, § 22 (“a substantial danger” and need to protect the “safety” of other persons and the community); Colo. Const. art. II, § 19(1)(B) (“the public would be placed in significant peril”); La. Const. art. I, § 18 (“an imminent danger”); Mich. Const. art. I, § 15 (“a danger”); Miss. Const. art. III, § 29(3) (“a special danger”); Mo. Const. art. I, § 32.2 (“a danger”); N.J. Const. art. I, § 11 (need to protect the “safety” of other persons and the community); Okla. Const. art. II, § 8 (need to protect the “safety” of other persons and the community); Utah Const. art. I, § 8(1)(C) (“a substantial danger”); see also N.M. Const. art. II, § 13 (no danger threshold specification); R.I. Const. art. I, § 9 (same); Tex. Const. art. I, §§ 11, 11a (same).
18 U.S.C. § 3142(b) (2012); S. Rep. No. 98-225, at 4-25 (1983); see also, e.g., United States v. Kelsey, 82 F. App’x 652, 654 (10th Cir. 2003) (“Mr. Kelsey has demonstrated an inability to stay away from drugs and drug-related activity, thereby making him a danger to society.”); United States v. Strong, 775 F.2d 504, 506 (3d Cir. 1985) (finding that “Congress intended to equate traffic in drugs with a danger to the community”).
See, e.g., Ariz. Const. art. II, § 22 (“reasonably assure the safety of the other person or the community”); Fla. Const. art. I, § 14 (“reasonably protect the community”); N.J. Const. art. I, § 11 (“reasonably . . . protect the safety of any other person or the community”); Okla. Const. art. II, § 8 (“assure the safety of the community or any person”); Pa. Const. art. I, § 14 (“reasonably assure the safety of any person and the community”); Vt. Const. II, § 40 (“reasonably prevent the physical violence”); Wis. Const. art. I, § 8(3) (adequately protect members of the community”); 18 U.S.C.A. § 3142(c) (West 2008) (“reasonably assure” safety).
See Baradaran & McIntyre, supra note 11 (conducting statistical risk assessment on a national pretrial dataset and identifying groups most likely to be rearrested for violent crime during pretrial release); Berk et al., supra note 97 (describing a machine-learned algorithm developed to forecast rearrest for domestic violence); LJAF, Public Safety, supra note 88 (explaining risk factors and formula for PSA risk scales, including violence-risk scale).
Rather, the primary metric offered to demonstrate the accuracy of a risk assessment instrument is the “area under the curve for the receiver operator characteristics” (AUC-ROC), a measure of classification accuracy (success at correctly identifying instances of each outcome). See, e.g., Cadigan et al., supra note 96, at 7-8 & n.3 (analyzing the “predictive ability” of the federal PTRA in terms of the AUC-ROC and explaining the basis for using this measure); Mona J.E. Danner et al., Race and Gender Neutral Pretrial Risk Assessment, Release Recommendations, and Supervision: VPRAI and PRAXIS Revised, Luminosity, Inc. 3 (Nov. 2016), http://luminosity-solutions.com/site/wp-content/uploads/2014/02/Race-and-Gender -Neutral-Pretrial-Risk-Assessment-November-2016.pdf [http://perma.cc/2KB6-C2CH] (calculating AUC-ROC for VPRAI and noting that AUC-ROC is “a common measure of risk assessment performance”). But for determining what intervention is appropriate for a given person or group, it is forecasting accuracy rather than the AUC-ROC that matters.
This means that the prevention benefit it provides relative to alternatives must outweigh its relative cost. Or, in more mathematical terms: If detention prevents 10% more crime than GPS monitoring, but costs 40% more, the question is not just whether the benefit of detention outweighs its cost. Instead, the question is whether the incremental (10%) prevention benefit outweighs the incremental (40%) increase in cost.
See Morse, supra note 209, at 1125 (“The best hope for the future is that we discover preventive, nonintrusive techniques that will lower the risk of violent offenses for everyone and nonintrusive interventions that will reduce the risk of recidivism for offenders.”); Underwood, supra note 85, at 1424-26 (noting that the cost of prediction depends on the response to it).
Richmond, California, for instance, operates a fellowship program for those at highest risk of killing or being killed; the program offers intensive mentorship, guidance, and a financial incentive for fellows to turn their lives around. See A.M. Wolf et al., Process Evaluation for the Office of Neighborhood Safety, Nat’l Council on Crime & Delinquency (July 2015), http://www.nccdglobal.org/sites/default/files/publication_pdf/ons-process-evaluation.pdf [http://perma.cc/7ASR-6TD].
Cf. Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring) (noting that the Equal Protection Clause offers powerful protection against oppressive laws by “requir[ing] the democratic majority to accept for themselves and their loved ones what they impose on you and me”).
There is a compelling case that none does, although this Article has not made it. See, e.g., Andrew von Hirsch, Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons, 21 Buff. L. Rev. 717, 740 (1972) (“If a system of preventive incarceration is known systematically to generate mistaken confinements, then it is unacceptable in absolute terms because it violates the obligation of society to do individual justice.”).