For years, the Federal system has used a risk assessment algorithm to judge pretrial risk.
By Jimmy Pham
Over 1 of 4 of federally incarcerated people have not yet had their day in court.1Wendy Sawyer and Peter Wagner: Mass Incarceration: The Whole Pie 2020 accessed August 24, 2021 Although we haven’t focused on this population in our previous research, the federal pretrial system generally and the risk assessment tool deployed within it is worth investigating due to its massive scale and its longstanding impact.
After the passage of the Pretrial Services Act of 1982 (18 U.S.C. §3152), pretrial services agencies were established within each federal judicial district, with the exception of the District of Columbia.2Thomas Cohen, Christopher Lowenkamp, and William Hicks: Revalidating the Federal Pretrial Risk Assessment Instrument (PTRA): A Research Summary Federal Probation 82, no. 2 (2018): 10 This legislation granted pretrial officers the authority to make recommendations about release decisions to judicial officials. The subsequent Bail Reform Act of 1984 (18 U.S.C. §3141 – 3150) required federal officers and the courts to consider a defendant’s dangerousness or threat to the community safety, in addition to flight risk, when making pretrial release decisions.3Thomas Cohen, Christopher Lowenkamp, and William Hicks: Revalidating the Federal Pretrial Risk Assessment Instrument (PTRA): A Research Summary Federal Probation 82, no. 2 (2018): 10
One way pretrial officers inform their release recommendations is through the Pretrial Risk Assessment Instrument (PTRA). The tool considers the following variables to determine “risk”: defendant’s criminal history, instant conviction offense, age, educational attainment, employment status, residential ownership, substance abuse problems, and citizenship status.4Thomas Cohen, Christopher Lowenkamp, and William Hicks: Revalidating the Federal Pretrial Risk Assessment Instrument (PTRA): A Research Summary Federal Probation 82, no. 2 (2018): 10 Federal pretrial services agencies started to adopt the tool in 2011 and it is now nearly universally utilized.5Timothy P Cadigan and Christopher T Lowenkamp: Implementing Risk Assessment in the Federal Pretrial Services System 2011, 9.
However, even when ostensibly adopted by an agency, implementation of the PTRA has and does vary. In 2014, only about half of all PTRAs were done before a judicial pretrial detention decision, though the proportion increased to about 3 in 4 PTRAs done pre-decision in 2018.6Thomas Cohen, Christopher Lowenkamp, and William Hicks Revalidating the Federal Pretrial Risk Assessment Instrument (PTRA): A Research Summary Federal Probation 82, no. 2 (2018): 10 Moreover, for undocumented immigrants, the PTRA is not used by pretrial officers even though the tool was designed with undocumented immigrants in mind.7Michael Neal Zero Tolerance for Pretrial Release of Undocumented Immigrants 30 (2021): 58. This can be attributed to the fact that pretrial officers generally do not conduct any pretrial investigations on undocumented immigrants at all due to an exclusionary policy that assumes they are high risk. Instead of a full case report, officers usually compile only a basic report including some biographic information on the immigrant with a criminal and immigration records check. Thus, for undocumented immigrants, pretrial officers almost universally recommend detention.
Proponents of the PTRA often justify its use with the promise of reducing pretrial incarceration. Yet, after a decade of its implementation, there has not been strong evidence that the tool accomplishes this goal. In fact, pretrial release rates decreased during the time the PTRA has been in use.8Thomas Cohen and Amaryllis Austin Examining Federal Pretrial Release Trends over the Last Decade Federal Probation 82, no. 2 (2018): 10. Though this correlation is not necessarily causation, the apparent non-effect or even harm caused by the PTRA to defendants warrants concern and more study.
