The pretrial phase of any criminal case is critical. But the laws, rules, procedures and norms involved in this pivotal moment are not often clear or consistent, which presents challenges for judges. Aiming to synthesize and clarify the dozens of studies that elucidate various aspects of the pretrial process, UCLA School of Law’s Criminal Justice Program produced a pretrial bench book for judges in California. Earlier this year, the Judicial Council of California distributed the book – quite possibly the first of its kind that combines law and research in such a practical format – to all judges in the state.

Titled “California Pretrial Release Considerations: A Bench Book for California Superior Court Judges,” the book was written by retired Judge Sherrill Ellsworth of the Riverside County Superior Court; Alicia Virani, the Rosalinde and Arthur Gilbert Foundation Director of the Criminal Justice Program; and Isabelle Geczy, who was the program’s pretrial justice fellow.

“Given the potentially life-altering consequences of pretrial decision-making, it is imperative that judges have all the tools they need to make lawful decisions based in research and not fear,” Virani says. Here, she explains why the book is important and how it will make an impact.

1. What is the bench book?

The bench book is a resource for California Superior Court judges. The first section contains California law related to pretrial release decisions. The second section provides a synthesis of the latest research on five different issue areas related to pretrial decision making: (1) Public Safety, (2) Flight Risk, (3) Bail Affordability, (4) Pretrial Release Conditions, and (5) Risk Assessment Instruments.

2. Why is the bench book needed?

Over the past decade, much has changed in our understanding of how best to decide whether to detain someone pretrial. We now have more reliable data and research about the impact of pretrial reforms and how best to support people to refrain from re-arrest and ensure their return to court during the pretrial phase of their case. Studies of pretrial reforms across the country show that reforming the money bail system or increasing pretrial release do not compromise public safety. Judges with busy dockets may not always have the time to read and digest these studies or understand how they can be used to inform their pretrial release calculations in tandem with the law. With this situation in mind, we synthesized the research to make it easily accessible. Our hope is that this will help judges make informed decisions regarding pretrial release.

3. You address common myths in the bench book about pretrial release. Can you explain one of them and why you chose to include this section?

There is a pervasive myth that if people pay some amount of money to secure their release, this will give them “skin in the game” and increase the likelihood that they will show up in court on the appointed day. However, studies of bail funds that pay money bail on behalf of arrested individuals disprove this notion. It turns out, for example, that simply creating a system to text people reminders of the date and time of their next court appearance ensures a very high appearance rate, even for people who have not paid their own bail. In Alameda County, California, the appearance rate for those released on their own recognizance went from 47% to 87% after the county implemented a court reminder system using verified phone numbers. Since judges have to consider a person’s risk of non-appearance, this type of research can help them understand that the majority of individuals will return to court given the right processes. In this way, we hope to encourage judges to make more well-informed pretrial release decisions.

4. How do all people involved in the legal process – judges, lawyers, or people seeking pretrial release – stand to benefit from the bench book?

Nationally, 70% of individuals in jails are being held there prior to trial. Forty-three percent of people held pretrial are Black. Most people who are in custody pretrial are there not because they have been found to pose a threat but only because they cannot afford bail. It is well documented that pretrial incarceration creates adverse consequences not only for the individual incarcerated but also for their families and communities. People held pretrial are at risk of losing their housing, employment, and benefits. They are more likely to end up rearrested on other charges in the future. And pretrial incarceration can also lead to family separation. In the preface to our bench book, retired Judge Alldredge of Tulare County emphasizes the need to make decisions regarding pretrial detention that are rooted in careful research. He describes the courage that it takes to follow the law governing pretrial release and to not bend to fear or public pressure. This type of careful decision-making can help to avoid the adverse consequences that so many people in our state suffer simply because they cannot afford to pay their way out of jail.

5. Is this bench book the first step in a bigger process for reform? What does that look like?

Through research I conducted with students in my Pretrial Justice Clinic, in collaboration with UC Berkeley Law’s Policy Advocacy Clinic, we found that In re Humphrey, the recent California Supreme Court decision declaring unaffordable cash bail unconstitutional, has not had the effect we thought it would. Since most people in California in pretrial detention are indigent, it was assumed that the Humphrey decision would have led to a higher proportion of people being released pretrial. However, this has not happened. So, this bench book is one tool in a larger set of efforts to help legal actors comply with the mandate of the Humphrey decision. I also hope that other states will look to this bench guide as a model and develop similar tools for their judiciary.