The use of paraprofessionals to provide individualized information about defendants that could guide judges’ decisions about granting bail could reduce racial disparities in pretrial detention, argues Paul Heaton, the director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School.
In a paper published in the Indiana Law Journal, Heaton said the results of a Philadelphia pilot study that assigned “bail advocates” to work with public defenders in presenting the case for releasing defendants before trial showed that improving the quality of defense counsel could correct some of the flaws in the pretrial process that have made it a major contributing factor to high incarceration rates.
Research has shown that decisions on whether to grant bail have disproportionately impacted the poorest defendants, and result in unequal racial outcomes―launching many defendants on a path to recidivism.
“A growing body of high-quality research links pretrial detention to later adverse outcomes, including unemployment and recidivism,” Heaton wrote, noting that individuals in pretrial custody represent 65 percent of the nationwide jail population.
But if defense attorneys were equipped with more “individualized information about clients, which could be used to argue for less stringent pretrial release conditions,” pretrial detention rates could be reduced, Heaton said.
In many jurisdictions, legal officials make initial pretrial release decisions in brief hearings that include little contextualized information about defendants.
Heaton argued that providing more personal information about defendants to courts — including statistical analyses on the likelihood of a defendant committing a pretrial crime or failing to appear in court — would help connect people facing criminal charges with services that reduce future contact with the criminal justice system.
Philadelphia Pilot Program
A pilot program introduced in Philadelphia hired paraprofessionals to assist the city’s Defender Association by interviewing clients after arrest, but before the preliminary arraignment.
The so-called “bail advocates” represent a defense-focused intervention that provides information usually ignored in overstressed justice systems.
Many jurisdictions instead rely on algorithm-based risk assessment tools to identify individuals deemed unlikely to show up for trail or at risk of reoffending in the future. But critics says these assessments can be biased or misleading.
The results of the Philadelphia bail advocate program were encouraging, Heaton wrote.
Although the post-program analysis didn’t produce strong evidence that bail advocates altered bail outcomes, they do have a statistically significant impact on the number of defendants who are arrested for technical violations of bail terms, such as failure to appear at trial.
“[These results are] comparable to those achievable using state-of-the-art risk assessment instruments,” Heaton reported. “Bail advocates also lessen punishment, reducing the likelihood clients will need to resolve their cases by pleading guilty or engaging in court-mandated remedial activities.”
And also notably, the advocates appeared to reduce recidivism rates.
“Other factors being equal, bail advocates are estimated to reduce future arrests by 26 percent, a sizeable impact,” Heaton wrote.
“Estimated impacts on the likelihood of future arrest and arrest during the pretrial period are of comparable direction and magnitude.”
Changing the Status Quo
Additionally, the analysts of the program determined that bail advocates are effective at reducing detention for Black versus non-Black defendants.
“Whereas racial disparities increase between arrest and detention under the status quo,” Heaton wrote, “they no longer increase in an environment where bail advocates are available.”
These results are significant; they signal, in simple terms, that bail advocates can reduce racial disparities, according to Heaton.
His paper claimed the success of bail advocates in reducing racial disparities has two explanations. First, bail advocates enable the court to make more informed decisions about how to manage defendants’ risk of nonappearance or future crime. Bail advocates also positively change how defendants engage with lawyers and the adjudication process.
“The bail advocates furnished a much richer base of knowledge about clients, which the public defenders used to humanize the defendants for magistrates and prosecutors,” Heaton wrote.
Many of the pieces of contextual information bail advocates provided could speak to defendants’ risk of nonappearance or threat to public safety—for example, information about community involvement, family arrangements, potential interactions with victims if released, mitigating circumstances concerning prior offenses.”
The benefits of bail advocates — who, in addition to providing individualized information to defense attorneys, also help connect clients to employment and training programs — show the benefits of defense-centric reform, Heaton argued.
“Defense attorneys are specifically tasked with advocating for the narrow interests of their clients, so it seems unlikely that improving their capabilities would lead to more detention,” he wrote.
“While in theory empowering defense attorneys could exacerbate racial bias if defense counsel are themselves implicitly or explicitly biased, our empirical analysis suggests that in fact the opposite is true — improving defense representation in Philadelphia reduced racial disparities.”
To access the full paper, click here.
Eva Herscowitz is a TCR contributing writer.