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On any given day, U.S. jails hold730,000 people awaiting trials for alleged crimes. Some of them will head to trial in a reasonable amount of time. Others will remain in pretrial detention for months or years, often because they simply cannot afford bail. In addition to inflicting severe economic, physical and emotional hardship, prolonged pretrial detention denies millions of people vital constitutional rights.
But the national conversation on criminality and social justice, which has been buzzing for several years, has recently grown louder, thanks to academic research, a number of high-profile cases, budget constraints and social media. It is time to eliminate the pervasive injustice faced by the accused before they go to trial.
When an individual is charged with a crime, a court can permit release without bail, set a bail amount or order pretrial detention. Bail can be used to prevent flight risk and to protect the public from additional crimes the defendant might commit before trial. But bail decisions disproportionately hurt people of color, the poor and the disabled.
Studies indicate that courts are more likely to viewAfrican Americans and Latinos as flight risks or public threats; these groups more often receive higher bail or mandatory pretrial detention. And because African Americans, Latinos and persons with disabilities are disproportionately poor, setting higher bail for them increases the likelihood that they will be unable to pay for release.
One study found that in 2008, 39 percent of all pretrial detainees in New York City were in custody because they could not afford bail. A 2013 study found that 50 percent of the city’s pretrial detainees could not afford bail of less than $2,500. In county courts across the nation, an average of 30 percent of pretrial detainees who are given bail less than $5,000 cannot afford the payment.
The inability to pay bail, however, does not explain prolonged detention. Trial delays primarily occur due to overly burdened criminal courts, prosecutors and defense lawyers. Clogged criminal-court dockets, in turn, are a direct result of the dramatic rise in the use of incarceration as method of social control in the United States — the outgrowth of the “tough on crime” mindset that pervaded the U.S. criminal justice system from the mid-1970s through the 1990s.
The U.S. prison population increased by 400 percent between 1973 and 2013; we incarcerate more people than any other nation. And while the United States is home to just five percent of the world population, our prisons house 25 percent of the world’s incarcerated population. The explosion of incarceration has substantially burdened the criminal process and slowed the pace of prosecution in many jurisdictions.
Prolonged pretrial tradition is inconsistent with U.S. legal norms because it infringes one of the most fundamental rights secured by the Constitution: the right to liberty. The government can detain defendants before trial, but pretrial detention must not constitute punishment, which can only occur upon conviction. When unreasonable and excessive delay occurs between arrest and trial, the distinction between pretrial detention and punishment is merely a facade.
Pretrial detention causes the same harms associated with incarceration: It separatesdefendants from family and friends, causes defendants to lose jobs and educational opportunities and contributes to recidivism. Pretrial detention can destroy intimate relationships and shatter familial bonds. Studiesalso indicate that conditions in prisons, such as violence, illicit drugs and emotional stressors, worsen inmate health — a problem compounded by inadequate physical and mental health care.
