Beyond Bail Reform: Minnesota’s Vision for Pretrial Transformation

Since 2013, changes to state laws, local ordinances, and court rulings have led to bail reforms in 24 states. Each jurisdiction has had its own unique road to reform, but their cumulative experiences have shown that building a safer and more just pretrial system is possible.

In 2023, the Minnesota Legislature commissioned our organization, the Minnesota Justice Research Center (MNJRC), to study our state’s own pretrial detention system. By then, lawmakers understood that successfully addressing the flaws with the existing pretrial system would require developing a bold, holistic vision of change.

Over the course of a year and a half, our research team held community conversations that engaged hundreds of Minnesotans and interviewed more than three dozen system actors across the state, including attorneys, judges, sheriffs, pretrial services staff, and court clerks. We obtained and analyzed quantitative data from the Minnesota Department of Corrections. We studied national standards, model legislation, and research on best practices. And we traveled to states that had implemented broad pretrial transformations.

We found that creating a pretrial system that prioritizes community safety, equity, and liberty will require more than small tweaks to our state’s bail laws. The existing system penalizes poverty, making defendants’ ability to pay bail, rather than public safety, the key factor behind pretrial release. Building a just and effective pretrial process calls for a ground-up transformation. We must rethink who we detain and why, and embrace solutions that support successful pretrial release instead of relying on detention as a default.

In theory, pretrial detention promotes public safety: While incarcerated, defendants cannot commit crimes in the community. In reality, people who are detained pretrial are more likely to be rearrested in the future because they lose jobs, housing, and social ties that promote stability and well-being. In other words, pretrial detention has been shown to increase recidivism, especially for people detained for short periods of time or on lower-level charges. And posting bail is supposed to make people more likely to come back to court. But study after study shows that paying cash bail isn’t necessary to ensure appearance.

Cash bail and pretrial detention are deeply unjust and harmful. People who pose little risk of fleeing or hurting others sit in jail if they’re poor, while wealthy people can buy their way out, even if they’re likely to commit harm in the community. In between, the families of the accused (often low-income women of color) hand over hundreds or thousands of dollars to bail bond companies—money they need for rent, medicine, and other essentials. They’ll never get that money back.

More than half of the people in Minnesota’s jails are being held pretrial, with Black and Indigenous people vastly overrepresented. System actors and community members alike expressed deep dissatisfaction with existing pretrial laws and practices.

People with firsthand experience of pretrial detention described “subhuman” jail conditions and profound damage to whole families and communities: “It takes years to recover,” one participant explained. System actors said they didn’t have effective tools to uphold public safety.  And some judges said that they sometimes purposely set unaffordable bail (because they’re not constitutionally allowed to outright detain people pretrial), thereby practically ensuring pretrial detention for people they consider “high risk.”

Many lamented the lack of resources to help defendants navigate the legal process and address issues that contribute to system involvement (addiction, housing insecurity, mental illness, and so on). “We can’t lock everybody up,” said a prosecutor in a rural Minnesota county where drug use and mental health needs are on the rise. “We can’t prosecute our way out of this. Let’s address it.” 

Successful pretrial transformation will depend on reducing the number of people unnecessarily held in jail pretrial while expanding support for defendants. To accomplish this, we propose shifts at nearly every stage of the pretrial process.

System change begins with law enforcement officers. Enhancing their ability to “cite and release” (to give someone a summons to appear in court rather than arrest them) could stem the flow of people into jails, reducing the pretrial jail population and saving resources. Many states, including Minnesota, require cite and release for low-level, misdemeanor offenses under many circumstances. Policymakers should pass legislation or change courts rules to require that police use this authority for higher-level charges too. If there’s a decent chance that the court will release a defendant on their own recognizance, police shouldn’t arrest them in the first place.

For those who are brought to jail, only a small minority should endure pretrial detention or restrictive pretrial monitoring; studies show that few people are likely to flee justice or harm themselves or others if released back into the community. And none should have to purchase their freedom.

The MNJRC proposes an intentional release/detain system that does not use cash bail. In Minnesota, this would require a constitutional amendment allowing the state to detain people outright, as well as legislation to limit the charges eligible for such detention. In this system, prosecutors must file a motion for detention, provide discovery to the defense, and, in an adversarial hearing, convince a judge that there is compelling evidence that the accused person poses a very high risk to willfully flee or to commit a serious or violent crime against a particular person or persons, and that no condition other than detention adequately addresses that high risk. 

As we observed in states that have implemented versions of this system, such as Illinois and New Jersey, pretrial hearings are far longer, more thorough, and more transparent than the minutes-long bail hearings held in overcrowded courts in Minnesota and other places. Many included spirited back-and-forth, and all ended with judges explaining their decisions on the record, which defendants then have the right to appeal.

A successful transformation will also require changing how we think about the conditions that courts impose on people released before trial. Some of the most commonly used conditions of release, such as drug testing and electronic monitoring, intensify social control but do little to promote court appearance or community safety. Onerous conditions disrupt people’s lives, including making it hard to find and keep employment. State policy, therefore, should instruct judges to order the least restrictive conditions required to maximize appearance and safety. In practice, this means releasing the majority of defendants without conditions (other than appearing for court and not committing crimes). Courts can assign the small proportion of defendants classified as “high risk” to pretrial services organizations (PSOs), ideally, without other mandated conditions. 

PSOs are the linchpin of pretrial transformation. They should be established and funded statewide. In the near past, many PSOs operated like proto-probation departments, focusing on monitoring and enforcing compliance. Today, a growing number view themselves more like social service or public health providers and emphasize care and support. These PSOs assess clients’ needs and strengths and provide them with resources for navigating the pretrial process. They provide information that courts use to make pretrial decisions, and they serve as an alternative to detention for judges reluctant to release “high-risk” defendants. Most people miss court for mundane reasons, such as lack of transportation, work conflicts, childcare duties, or difficulty keeping track of their court dates. Innovative PSOs, therefore, provide court reminders, transportation vouchers, and, in some cases, cell phones.

PSOs also make optional and confidential referrals to community-based service providers, so clients can get help with addiction, employment, mental illness, housing, and so forth. (Because defendants have only been charged, not convicted, courts shouldn’t mandate treatment.) Crucially, PSOs in diverse locales from New York City to Sawyer County, Wisconsin, employ “peer specialists” who have past personal experience with addiction or incarceration. These credible messengers help defendants access resources and remain in compliance with court orders.

We know from places like New Jersey and Illinois that transforming the pretrial system requires broad-based, sustained advocacy and dedicated, good-faith collaboration among state leaders, system actors, and community members. This is just as true in Minnesota, where transformation requires changing the state constitution, passing expansive legislation, instituting new court rules, and dedicating substantial resources for pretrial services, training, and administration. 

Once implemented, the transformation we propose would expand liberty, with far fewer people arrested, subjected to pretrial detention, or tightly surveilled in the community. It would make the system much more equitable: Wealth would not determine whether a person remains in jail, and bail bond companies would no longer extract resources from low-income families and communities. And these changes would promote safety by interrupting cycles of arrest and detention. Holding fewer people in jail and helping more people access needed services improves community safety.

States should not rely on pretrial systems to solve social problems. But they should find the political will and make the necessary investments to prevent those systems from continuing to fuel inequality and injustice. As we heard during our community conversations, Minnesotans want a system that reflects their values by holding people accountable and giving them opportunities to succeed.