Advancing Bail and Pretrial Justice Reform in Arizona

Henry F. Fradella and Christine S. Scott-Hayward

Executive Summary

This Article assesses Arizona’s pretrial justice reforms to date and suggests some ways to further improve pretrial justice, to remedy the fact that 78.5% of the people held in the state’s jails have not been convicted of the crimes for which they were arrested, but rather are awaiting trial. This state of affairs undermines the presumption of innocence while unnecessarily costing the taxpayers of Arizona far too much money. Moreover, it threatens public safety on account of the criminogenic effects of pretrial detention. And finally, the state’s reliance on pretrial risk assessment instruments perpetuates racial and ethnic injustice in the state. The state can address these problems by adopting practices that increase fairness, decrease costs, improve public safety, and minimize racial disparities in criminal justice processes and outcomes.

Key Findings:

• Changes to Arizona’s bail system have reduced, but not eliminated reliance on expensive and often exploitative commercial bail agents. Those arrestees who cannot afford to buy their freedom pending trial are subjected to a loss of liberty despite not being convicted of the crimes for which they are charged.

• Bail reforms to date have not addressed the myriad problems attendant to punishing the poor by placing pretrial release beyond their financial reach using cash bail. This situation not only has criminogenic effects, but also contributes to wrongful convictions of people who plead guilty to escape the harsh conditions in which they are detained pretrial.

• Arizona increasingly relies on pretrial risk assessment instruments that rely on severely flawed algorithms that perpetuate racial and ethnic disparities at the pretrial phase which, in turn, contributes to downstream negative consequences in case outcomes.

Key Recommendations:

• Arizona should abolish cash bail. The risks of arrestees failing to appear in court can largely be addressed with inexpensive court notification programs. 

• Reliance on risk assessment instruments should be abandoned. The overwhelming number of arrestees can safely be released on their own recognizance or on unsecured bonds. The small minority of arrestees who might pose a risk of reoffending while released pending trial can be monitored by pretrial service agencies, thereby avoiding the costs and criminogenic consequences of pretrial detention.

• Counsel must be provided to indigent arrestees at their initial appearance before a judicial officer. The cost of doing so can be covered by the savings realized by dramatically reducing the number of people held in pretrial detention merely because they cannot afford to pay cash bail.