Presumed Innocent? A Funder Steps Up Its Push Against a Deeply Unfair Pretrial Justice System

Two legal questions should govern pretrial detention procedures: Does the defendant represent a risk to public safety, and is he or she likely to return to court for trial?

In practice, however, pretrial justice operates with limited information to answer these questions and too often relies on cash bail to determine whether a person remains in custody or is released before trial. Such a system means affluent defendants can buy their freedom before trial, while poorer ones often remain locked up until the resolution of their cases. A growing number of criminal justice reform advocates and prominent funders believe that’s wrong. And in recent years, they’ve stepped up work to challenge a deeply unfair pretrial justice system that epitomizes the racial and socioeconomic inequities in American criminal justice and fuels mass incarceration.

Arnold Ventures (formerly the Laura and John Arnold Foundation) has played a leading role in efforts to reform pretrial justice, as we’ve reported often over recent years. It’s worked to better understand the inequities and inefficiencies in this system, develop scalable solutions to those problems, and advocate for change. Now, it’s further ramping up these efforts by launching the National Partnership for Pretrial Justice, an alliance of research, policy and advocacy groups united to reform pretrial justice nationwide. More than 20 stakeholder organizations are part of the new partnership, and Arnold is putting big money behind this alliance, awarding nearly $40 million in grants to more than 20 grantees.

“The presumption of innocence is a core American value that is too often suppressed or ignored in our pretrial justice system,” said Jeremy Travis, executive vice president of criminal justice at Arnold. “Every year, too many Americans are locked up in jails simply because they can’t pay for their freedom. And too often, efforts to find solutions are either siloed or contentious in ways that impede reform. We want to break down the barriers that have fragmented well-meaning advocacy to build a thoughtful, research-driven community with shared goals and values.”

Arnold has backed projects in this area since 2011, along with other high-profile funders such as the John D. and Catherine T. MacArthur Foundation. Much of Arnold’s past work on pretrial justice has concentrated on risk assessment. Arnold supported development of the Public Safety Assessment (PSA), a data-driven assessment tool for objectively determining the risk a particular defendant poses to public safety. The PSA is designed to inform decisions to detain or release defendants before trial by providing judges with objective data about whether a defendant is likely to re-offend or fail to appear for court. At present, more than 40 jurisdictions, including three states, use the PSA to determine whether defendants are freed or held in jail until trial. Arnold has also backed a wide range of other work on criminal justice reform, giving $142 million in this area since 2011.

With the formation of the new partnership, Arnold appears to be amplifying its focus on pretrial justice. That seems like a smart bet, as developments at the state and local levels suggest that pretrial justice is a hot topic, creating ripe opportunities to advance reform. Legislative changes in California and New Jersey have moved these states away from money bail, relying more instead on data-driven instruments to assess defendants’ risk levels. James Cadogan, vice president for criminal justice at Arnold Ventures, cited the actions in California and New Jersey as examples to illustrate that a great deal of attention is being paid to the need for change in pretrial procedures, creating a unique moment for action.

“We heard those same sentiments reflected in dialogue with our grant partners,” Cadogan said. “This partnership will be a vehicle to come together and engage.”

New Jersey is one state using the PSA as part of its move away from cash bail and toward a pretrial system that strives to be more equitable and provide courts with more objective data on the risk levels posed by particular defendants. Cadogan said the PSA will be an integral part of the research, training and assistance that some of the organizations will be conducting under this new partnership.

Arnold Ventures believes that to reduce unjust and unnecessary pretrial detention, it is necessary to protect the presumption of innocence enshrined in the nation’s constitution and that only defendants charged with the most serious crimes should be subject to pretrial detention. The funder also believes that a pretrial system reliant on money bail obscures risk analyses and contributes to racial and socioeconomic disparities. It sees validated pretrial risk assessments as supporting better judicial decision-making. The funder’s statement of principles on pretrial justice can be found on the Arnold Ventures website.

The organizations funded by the National Partnership for Pretrial Justice represent a diverse set of stakeholders, including organizations interested in research and evaluation, public defense, prosecution, jail reform in rural areas, and more. Grant recipients under the new partnership will engage in a number of related efforts:

The Center for Effective Public Policy will provide training and implementation assistance, supporting pretrial improvements in up to 10 research-action sites over five years under Arnold’s Advancing Pretrial Policy and Research project.
RTI International and Stanford University will evaluate the impact of the PSA in the research-action sites, as well as conduct other research on risk assessments.
Public Safety Lab at New York University will study the effects of bail, pretrial detention and legal practices on defendants’ outcomes across more than 1,000 counties.
The Center for Court Innovation will study racial disparities in data-driven risk assessments and ways to reduce them.
Vera Institute for Justice will create a research and policy network focused on better understanding drivers of rural jail growth.
Pretrial Justice Institute will study how the use of evidence-based practices in the pretrial field has changed over the years.
National Center for State Courts will conduct research, develop benchmarks, and advise state courts on how to improve efficiency in criminal case processing.
RAND Corporation will conduct a randomized experiment in Allegheny County, Pennsylvania, on the impact of public defenders representing defendants at preliminary arraignments.
Urban Institute will collect baseline data on prosecutorial decisions, assess the state of such data collection nationwide, and identify areas for future data collection work.

There is growing political momentum for changes in the American criminal justice system. Beyond state-level actions around pretrial justice in California and New Jersey, as well as jail and prison reforms in other jurisdictions, Congress’ 2018 passage of the First Step Act underscores the new energy around creating a more just system while protecting public safety. The criminal justice team at Arnold is thinking about ways to leverage the work that emerges from this new partnership to advance larger changes.

“We want to continue to support our grantees as they work toward impact,” said Cadogan. “We have a lot of people focused on pretrial justice now that haven’t gotten a lot of attention, so the ramp-up is really exciting.”

Translating research to policy action is something Cadogan said the team at Arnold is actively thinking about, not just in pretrial proceedings, but in all areas of criminal justice. Bringing together a growing set of players within criminal justice reform is also a key goal. With this new partnership, stakeholders have greater opportunities to learn from each other about what is and is not working in pretrial justice.