Yet, comparative studies established that, over the recent decades, many European jurisdictions departed from this tradition, to promote, instead, policing and social control goals. 28 Analysing the reasons for enlarging the list of grounds for pre-trial detention would fall out of the scope if this paper. The reasons underpinning national criminal policies of pre-trial detention may be very difficult to grab and a whole comprehensive study would be needed to establish the causes of the reported phenomenon. For example, a regarded comparative American study considered the German reform of 1964, introducing a brand-new case of pretrial detention, based on the risk of serious offences, a consequence of the German accession to the ECHR. Although the accession did not imply the introduction of less liberal conditions, a new case of pre-trial detention was introduced for suspects having committed serious sex crimes 29.

Despite the general acknowledgement of the presumption of innocence – recognised both in Europe and in the US – the trend mentioned above proved that, in recent years, the specific purposes distinguishing pre-trial detention from punishment tend to blur. Including new legal basis for precautionary measures, based on the need to prevent serious crimes, is not the only reason for anticipating the effect of penalty, via remand in custody and other interim measures. Among others, is the unreasonable length of criminal proceedings, 30 certified in many States of the Council of Europe by the European Court of Human Rights (Italy above all others). Given that the causes for increasing the use of pre-trial detention are manifold, the consequence of such a trend was coherent, focusing the public opinion more on custody than on punishment, fostering the public expectation for an early and immediate deprivation of liberty, regardless the effective assessment of guilt and sentencing. The effect of this tendency is a major threat to the presumption of innocence, 31 as testified by comprehensive literature on the topic. 32

The same arguments seem to be valid for the U.S. too. Protecting the community was not a traditional task of pre-trial detention 33 until the Eighties of the XX century. In 1984, the Bail Reform Act (see supra), introduced the ‘danger to the community’ as legitimate grounds for pre-trial detention 34. In recent years, only a few States regulations of pre-trial detention refer exclusively to the consideration for court appearance. 35 The US Supreme Court up-held this new task of remand in custody, stressing that «the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest». 36 Interestingly, in the quoted case of Salerno, the US Supreme Court came to a particular conclusion: based on the lack of intent to punish, pre-trial detention ordered at the detention hearing for the purpose of preventing crimes must be considered regulatory rather than punitive. Despite the criticism about such conclusion 37, the Court never overruled that decision and prevention of (re?)offending became an accepted grounds for remand on custody.

Given this general overview, the conclusion is that recent history of the western legal area demonstrates an expansion in the application of predictions in the field of precautionary measures, limiting individuals’ liberty before (and pending) trial. However, being exceptional, the decisions about pre-trail detention (and other coercive measures) must be justified by strong reasoning, in order to prevent abuses, as expressly provided by several domestic constitutions. 38 And the more custody serves social security (rather than procedural) goals, the higher becomes the need for precise justification. But how can judicial authorities deliver precise reasoning about the risks of the suspect’s future behaviour?

Before we move any further into the topic of this paper, there are some important premises. First. As said, rules of criminal procedure seldom provide the decision maker with precise criteria for delivering an accurate risk assessment 39: be it a matter of predicting the risk of absconding, or obstructing justice by tempering evidence, or committing a serious offence, judges are seldom equipped with valuable and accurate criteria to forecast the defendant’s future behaviour. Second. Even if the law or case-law provide for precise parameters, remand in custody and similar coercive measures are usually applied at an early stage of the proceedings, when the competent authorities have little information about both the facts that occurred and the suspect’s personality, as the file is still incomplete.

In this scenario, two different solutions gained momentum. Traditionally, the difficulty of forecasting an individual’s future behaviour in pre-trial decisions has been tackled with presumptions. Although this should be the object of a specific comparative study, it is possible to argue, with some approximation, that the majority of the western legal orders recur to presumptions to establish the existence of a specific risk justifying detention (or other precautionary measures limiting liberty) before the assessment of guilt beyond any reasonable doubt. Such presumptions are various: They may be established by the law (see art. 275.3 of the Italian code of criminal procedure) or by consistent case-law 40; they are often rebuttable, but they may also imply some irrebuttable consequences (see, again, the example of art. 275.3 ItCCP, hereinafter). Generally speaking, legal presumptions hardly reconcile with the scheme of fair trial, reducing the space for an effective defence: if rebuttable, they reverse the burden of proof from the authorities upon the defendant, relieving the former from the duty of providing precise reasoning; if irrebuttable, they simply deprive the latter of the right to demonstrate the specificity of his/her own situation, excluding judicial authorities’ discretion and, thus, their duty to provide reasoning for their decisions. Moreover, the pre-trial context is a fluid one: investigation may introduce new elements, to change the scenario and presumptions are not compatible with it 41. Such pattern appears to be particularly controversial with regard to pre-trial detention, as liberty is supposed to be the rule and incarceration or incapacitation an absolute exception…

As an alternative to traditional presumptions, models based on psycho-criminological, statistical theories also appear to offer a great support, giving the judicial reasoning the ‘fuel’ it needs, in the context of precautionary measures. Not only sentencing is a ‘natural’ scenario for risk assessment (manual or digital) tools (see § 4): detention hearings and other judicial decisions upon remand on custody (and other precautionary measures) became, more and more, the floor for predictions. And the more human decisions prove inconsistent, the more presumptions appear to violate individual’s right to a fair trial, the more the quantitative approach seems to be the solution. But is it a valuable solution? Let us reflect upon this.

The Italian criminal justice system was completely renewed in 1988, with a new code of criminal procedure. Abandoning the traditional inquisitorial scheme, the new code did not provide for legal presumptions in the field of pre-trial detention. Along with other provisions, art. 275 ItCCP set forth a system of individualised judicial decisions, based on the need to satisfy specific requirements as to: i) proof of wrongdoing, and absence of excuses; ii) seriousness of the alleged misconduct; iii) existence of at least one specific risk among: evidence tampering; absconding; committing serious offences; iv) proportionality of the measure with the alleged misconduct; v) pre-trial detention as last resort measure, when no other conditions (or sets of measures) can reasonably prevent the risk under (iii). Each decision is triggered by a public prosecutor’s request and is delivered by a judge, along with specific reasoning: both the accused and the prosecutor may challenge the judicial decision, with specific means of appeal, before a court of merits and even before the Supreme Court.

In this context, art. 275.3 ItCCP was soon amended (by some urgent reforms, passed by the Government, and upheld by the Parliament, in 1991), in order to introduce a double presumption, for a list of organised crimes. With regard to such crimes, if there is proof of wrongdoing (i) and a risk in letting the suspect at large (iii), the judge must order pre-trial detention and pre-trial detention only, with a two-tier system: a rebuttable presumption (about wrong doing and risks: the accused is allowed to demonstrate that there is no proof, of the wrongdoing and of risk…) and an irrebuttable one. If the rebuttable presumption is not reversed by the accused, remand on custody will be ordered, as it is presumed that, given the accused’s affiliation to a criminal organisation, the sole effective measure is detention. The purpose of the amendment was to relieve judges from the duty to provide precise reasoning for remand in custody of members of powerful criminal organisations: setting a presumption would free the judge from a discretionary decision and, possibly, from the risk of retaliation. After a reduction, in 1995, the list of crimes implying the two-tier presumption was widely enlarged in 2009, with no connection to organised crime. Such trend triggered several appeals to the Italian Constitutional Court, that, in 2010, quashed the irrebuttable presumption, transforming it into a rebuttable one (with regard to some of the crimes enlisted in art. 275.3 ItCCP) 45. The Court found several violations of the Italian Constitution: art. 3, establishing equal protection of individuals under the law (as to the lack of coherence in the list of offences triggering the presumptions); art. 13, setting forth the principle that liberty is the rule and pre-trial detention an extremely specific exception; art. 27, providing that punishment must have a rehabilitation purpose (as to the punitive effect triggered by the presumption system).

At the time of writing, as a consequence of several others decision by the Constitutional Court and a series of amendments, the Italian rule about presumptions reads as follows: the original two-tier presumption still applies for three specific crimes (sedition, terrorism, affiliation to mafia organisations); in case of proof of wrongdoing, remand on custody is ordered, unless there is proof of no risk at all in leaving the suspect at large; for a (non-coherent) list of other crimes, there is a double rebuttable presumption, allowing the suspect to demonstrate: i) that there is no proof of wrongdoing or risk in being let at large; ii) if (i) is not reversed, other less punitive measures are suitable to balance the risk.

As a matter of fact, Italy just reduced, but did not abandon, presumptions in the application of pre-trial detention, upholding even the arguable irrebuttable presumption for terrorism and affiliation to mafia: the internal debate, however, is far from being over 46 and further interventions by the Constitutional Court have been envisaged 47.

For almost two centuries, the US federal system had established the right to bail for individuals accused of non -capital punishment crimes, based on their capability to provide sureties 48. Traditionally, at the federal level, bail was ruled by three basic rules: bail should not be excessive; a right to bail exists in non-capital cases; bail is meant to assure the presence of the accused at trial. However, as a matter of fact, the right to release was submitted to wealth 49, although in accordance with the principle of non-excessive bail, set forth by the VIII Amendment to the Federal Constitution.

During the Sixties of the 20 ^th century, the disappointment for a situation linking liberty to wealth was growing and under the initiative of the US Attorney General, Robert Kennedy, a National Conference on Bail and Criminal Justice was held in May 1964 50, paving the way to the 1966 Bail Reform Act.

It is in the wake of such reform that, with the purpose to detach release from financial conditions, the attention started to be moved from the ends of justice to the needs of public interest (as openly stated by the 1966 Act itself). The trend grew over the decades, until in 1984 the standard of presumptive favour for release pending trial was replaced, with regard to serious offence, by the reverse presumption of custody 51. According to the 1984 Bail reform act, two groups of conditions justify such reversal, introducing - like in the Italian experience – the presumption that only remand in custody is effective 52. The so called ‘Previous Violator Presumption’ 53 and the ‘Drug and Firearm Offender Presumption’ have long been applied and are based on specific tests, daily applied by courts.

As said above, and unlike in the Italian jurisdiction, the Supreme Court upheld this approach, approving both the shift of pre-trial detention towards goals of public security and the system of presumptions, which, however, have been recently scrutinised as possible grounds for the growing rates of pre-trial incarceration. As a matter of fact, since the 1984 Act was enacted, rates of pre-trial detention grew in a constant manner (from 2000 to 2016 it grew up from 53 to 59 %) 54, generating a number of concerns in both social and economic terms. It cannot be overlooked that, in 2016, the average pre-trial detention period was 255 days (over 400 days in several districts), generating huge public expenditure. At the same time, the purpose of separating the right to release and personal financial situation could not be accomplished and the movement for bail reform is one rare area of bi-partisan agreement, pushing for abandoning monetary bail, in favour of effective management of risk. 55In fact, given these premises, there are branches of legal research suggesting that presumptions should be replaced by solutions offering a more accurate and flexible representation of reality: models of pre-trial risk assessment.

As to Europe, the beginning of the last century experienced the clash between the ‘classic’ penological ideology, based on retribution, and the so-called positivistic ideology, promoted in particular by the German Moderne Schule. This was inspired by the ideal that criminal law is a form of social control, and thus promoted a preventative purpose for the penalty 57. Such a theoretical trend is often defined, in the continental literature, as ‘utilitarian-functionalist’, 58 after Jeremy Bentham’s traditional paradigm. 59 In fact, this approach tends to curb criminal law into an instrument to achieve a specific result, i.e., social control. In this view, culpability, the traditional foundation for penalty, 60 may turn out to be incompatible with the purpose of maintaining (or restore) social order, 61 troubled by crime. Several continental jurisdictions, were influenced by the so called ‘positive school’, and adopted a two-toer system, based on both penalties and correctional measures, the first being proportional to the act, the second to the social risk posed by the convicted 62. Actually, such distinction provided for the clear distinction between desert and dangerousness, giving the latter its own specific relevance in the criminological theory. As a result of this distinction, the majority of the European jurisdictions confirmed the tradition of establishing minimum and maximum sentences with regard to every offence, 63 while common law systems stuck to the tradition of undetermined sentences, making sentencing a process detached from criminal law rules and principles. 64

In fact, in the US, the debate about individualisation of punishment pushed the system towards undetermined sentencing, moving the discretion about the period of detention from courts to boards of experts 65. This trend had been theorised in the ‘70s of the 19 ^th century, but was not generally accepted: in fact, it appeared inconstant with the traditional principles of nulla poena and punitur quia peccatum est66. First, the traditional balance between legislative, judicial and administrative powers was in jeopardy: not only would the undetermined sentence deprive the Parliament of the power to establish minimum and maximum penalties (as provided by the Constitution), but it would also replace the judicial discretion in sentencing, with an administrative board’s arbitrariness, departing from the general principles of criminal law. Second, the fundamental beacon of the whole of Western ideology, free will, seemed to be under attack. Guilt and punishment were shifted from culpability (i.e. blameworthiness of one’s own free behaviour) to the field of the offender’s character and criminological type.

However, there was bitter criticism about the criminal justice system of the time. The US was experiencing massive distress because of patent differences in sentencing among federal States. Legal historians report a huge concern for bias and the arbitrariness of courts, scarcely directed by local criminal rules in the overwhelming duty of determining criminal sanctions. Against this backdrop, the proposal of allocating sentencing to experts’ boards, operating on the basis of one common index, i.e. science, turned out to be successful. The opinion that delivering the sentence and its periodical review were to be considered, more correctly, administrative duties, rather than judicial, gained momentum, suggesting that they should be performed by an administrative body, 67 with no need of specific Constitutional amendments: the law still provided for a minimum and maximum sentence and courts still had the power to assess guilt, for the sake of the rule of law… 68 Apparently, this was enough to overcome the fear of ‘administrativisation’ of criminal justice, which occurred with a general spreading of progressive treatment and experts’ boards, by the 20’s of the 20th century. This was to become a benchmark, distinguishing the US and the European continental tradition.

In the U.S., the 20 ^th century became the flourishing era of predictive sentencing, boosting psycho-criminological research upon the risk of violent behaviour and recidivism. These were the origins of risk assessment, and they explain why the latter has always been associated with incapacitation, in a paradigm of removal of dangerous individuals from society, until a full recovery from dangerousness.

Since those moments on, risk assessment is the main instrument for evaluating potential re-offending. The term is not specific at all, as it is used in many different technical and scientific areas. However, it is in the criminal justice setting that it received the most contradictory reactions 69. Nevertheless, it has become crucial in several areas of decision-making, both at the pre-trial stage, sentencing and parole, and also in the follow-up of psychiatric situations. 70

Moving from the speculation that “nothing predicts behaviour like (or better than) previous behaviour” 71, “such tools include a set of risk factors, which may or may not be weighted, to provide a classification of risk (high, medium, low) a probabilistic score (i.e., a percentage probability of re-offending within a certain timeframe) or both”. 72 As seen above, both in general and in specific forensic terms, the matter is the validation of methods and instruments, that must obtain acceptance by the scientific community.

As risk always entails uncertainty 73, identifying risk factors is the first challenge for scholars and practitioners in the field. Criminal behaviours have multiple causation factors and an offender’s risk assessment always take into account the interaction of several factors. A second fundamental step in understanding risk assessment is the relationship between the group and the individual. Social sciences collect statistical data to elaborate general conclusions, applicable to groups of cases. The ‘G2I’ (Group to Individual) paradigm is at the core of the debate about forensic predictive tools. Prediction of future behaviour can only be based on the observation of a group, and is a function of group outcomes: let us see how deeply the G2I effect may affect the reliability of a risk assessment model.

The first step of any risk assessment model is listing causational factors triggering criminal behaviour. Risk factors are usually divided into two groups: static and dynamic. The first do not change, or change in only one possible direction (e.g. age). The latter (dynamic) may change according to the individual’s situation and they include criminogenic needs, i.e. aspects of a person, or her personal conditions that, when changing, may set off a variation in her criminal behaviour. There is no evidence that either static or dynamic factors are more reliable indicators of risk: both insufficient per se, they must be taken into account jointly, for a successful assessment. Unfortunately, it is unrealistic that a tool may consider every possible risk factor 74: nevertheless, this fact does not prevent models of risk assessment to be reliable.

The accuracy of a scientific prediction is based on the largest sample possible, i.e., the greatest number of cases examined. In particular, a forensic prediction is reliable if it correctly demonstrates the individual’s propensity to re-offend. Here the G2I factor steps in: the scale of these two evaluations (suitability and adequacy of the sample; reliability of the prediction with regard to a specific individual) is different and, for this reason, risk assessment is often criticised for its inaccuracy in translating group phenomena into individual instances 75… As said above, models are not the mirror of reality, they only aspire to describe reality.

One factor may have a relevant impact on the G2I factor. The instruments to enact practical, individual risk assessment may be different, due to the approach they use in translating psycho-criminological theories into a personal evaluation. One main, traditional, distinction is between actuarial instruments and clinical, professional, judgment instruments. For a basic distinction, it is possible to say that actuarial instruments address historical and static risk factors, while professional judgment instruments take into account dynamic risk factors. While the professional approach encompasses the professional’s experience and intuition – but, also her unconscious bias - the static risk evaluations tend to portray an individual as unchangeable, without taking into account the effect of a possible evolution in her condition, influencing the risk of (re)offending.

As mentioned above, in the US, the high dissatisfaction with pretrial incarceration rates set possible alternatives to presumptions under the spotlight. Based on the large experience gathered in the realm of sentencing and parole risk assessment tools, several solutions have been tailored for both the federal and the local level.

At the federal level, the Probation and Pretrial Service Office, Administrative Office of the U.S. Courts, assigned Christopher Lowenkamp with the design of a specific tool, meant to assist pre-trial federal officers in preparing recommendation before detention hearings 76: in 2010 he released the Pretrial Risk Assessment Tool (PTRA), which is extensively used, and regularly revised, in order to re-assess its validation 77.

The instrument is actuarial, based on large archive data, originally encompassing 200.000 federal cases of release, from 2001 to 2007. The instrument rates the defendant’s risk of failure to appear (FTA), rearrest for new criminal activity, pretrial revocation of release.

Inspired by regression modelling techniques, the PTRA algorithm is based on 11 parameters that, according to Lowenkamp’s theory, accurately score the individual’s specific pre-trial risk. Such parameters are: defendant’s criminal history (number of felony convictions; prior failure to appear; pending felonies and misdemeanors); instant conviction offence (type and class); age, educational achievements; employment status; residential location and ownership; problems of drug or other substance abuse; citizenship status. Given these data, the tool scores suspects in a range of five risk categories, from 0 to 15, predicting the likelihood that the they commit pre-trial violations.

This brand-new instrument was set in the hands of federal pre-trial officers (civil servants who, according to § 1354 of the bail Reform Act, are in charge of collecting, verifying and reporting judicial officials on information about the risks posed by a defendant in terms of flight and social danger). In 2014, only half of the pre-trial reports handled by pre-trial officers to judicial officials was based on PTRA, while in more recent years, the use became larger 78.

As to local dimension, one tool is widely used in the US, in pre-trial detention and release decisions 79: 28 jurisdictions (and among them three States) 80 use the Public Safety Assessment (PSA) 81 to assist the judge in the decision about the risks of leaving the accused at large, before trial. The software was developed in 2013 and, according to the institution that promoted it (the Laura and John Arnold Foundation) 82, it is useful in reducing the number of individuals detained before trial. 83 Based on 9 factors, 84 the instrument is actuarial, relying on the individual’s age, current charge and criminal history: race, ethnicity and geography are not taken into consideration as, according to the designers, they would not improve accuracy in prediction. The instrument is said to having been created on the basis of the largest dataset ever collected, i.e. 750.000 cases, from about 300 jurisdictions: according to the designers, this makes it a nationally-wide validated tool.

The tool does not need an interview with the accused: the information can be taken out of her criminal record and other general record accessible to the public authority. Based on algorithms tailored to purpose, the tool produces a scale of the individual’s risk under three different parameters (FTA, Failure To Appear; NCA, New Criminal Activity; NVCA, New Violent Criminal Activity), that can be used by a judge or a court, along with the so-called Decision-Framework, 85 to decide whether the arrested will be released or detained. The peculiarity of this instrument is the ability to deliver a ‘Failure To Appear’ index. The risk factors considered by PSA under this parameter are: Pending charge at the time of offense (Y/N); Prior conviction (Y/N); Prior failure to appear in the past 2 years (No/Once/2 or more times); Prior failure to appear, older than 2 years (Y/N).

The more traditional monetary bail proved discriminatory towards the poorest social groups 86 (and, thus, potentially in breach of the Eighth Amendment to the Federal Constitution), 87 the quicker this pretrial risk assessment tool spread around the US 88, pushed by a strong movement for reforming bail throughout the US, prioritising effective risk management over monetary bonds, and gaining momentum in pretrial services programs, focusing both on release and diversion. 89

There are few studies focusing on the real impact of the use of pretrial risk assessment. Some researchers have highlighted that the effects of it are scarce and not permanent. 90 Given that pretrial risk assessment is a relatively new trend, based on the recent mistrust and critique of traditional monetary bail bonds, its advocate argue that the burdensome, awful, monetary bond may prove useless in bail decisions, if «in principle an algorithm could also make these predictions. Just as pixel patterns can be used to predict presence of a face, information about the defendant and their case could be used to predict flight or public safety risk» 91.

What is radically new, in the two pre-trial risk assessment models presented here, is the FTA index. I reported above the factors that PTRA and PSA consider to be relevant for the evaluation of the individual’s propensity to abscond. However, apparently there is no comprehensive and fully independent literature about the meaningfulness of those factors in terms of effective risk of flight. While criminogenic factors at the basis of sentencing risk assessment have been widely discussed by scholars, over the last century, at least, it seems to me that there is no sufficiently convincing academic literature demonstrating the relevance of the FTA factors. On the one hand, it is important to understand if and how judges apply the PSA report, taking into account first instance and appeal pre-trial decisions 92. On the other hand, there is a lack of literature demonstrating that the incorporation of those factors into an actuarial instrument can outperform the judge’s individual evaluation. Secondly, it turns out to be complicated for scholars, to compare algorithmic pretrial risk assessment tools with judicial decisions, because of the ambiguity of judges’ predictions. In fact, a defendant can be remanded in custody both because the judge estimated a high risk of absconding (or offending), or simply because the judge overestimated her ability to pay, establishing a bond that she cannot afford. Moreover, the judge’s individual evaluation can be influenced by factors other than risk, such as proportion with the current charge, notwithstanding a high score in risk of absconding or offending. 93 Thus, only a rough proxy can be used as a measure of human performance in estimating pretrial risk… 94 Taking into account all these arguments, scholars have argued that it is unclear whether digital pretrial risk assessment tools really outperform humans at predicting pretrial risks 95. However, I suggest to move the spotlight from the specific aspect of measuring if and how much pre-trial risk assessment models can outperform humans in detecting real risk, to a different issue: how can pre-trial measure decisions become more compliant with the presumption of innocence?

serena.quattrocolo@uniupo.it