Reducing Pretrial Detention: A Conservative Case for Court Reform
Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, makes a conservative case for reform on Townhall (June 25 and 26, 2015). He begins with the case for reducing prison before trial (“pretrial detention”):
In early June, 22 year-old Kalief Browder took his own life after spending three years, including stints in solitary confinement, on Rikers Island, New York City’s troubled jail. Upon reading the story, one might be forgiven for thinking that Browder was serving time on account of being convicted of a crime. In fact, though, he served these three years as a pretrial detainee and the charge against him of stealing a backpack was ultimately dropped. While Browder had a prior offense, he would have secured release had he or his family been able to afford a $3,000 bond.
The length of time Browder spent behind bars while awaiting trial was far more than the average, but pretrial detention for extended periods is hardly unusual. More than 400,000 Americans in jails today must remain there until their case is resolved, which often takes months and occasionally years. Of course, these individuals remain innocent until proven guilty and indeed in 19 percent of cases the charges are never brought or dismissed.
Public safety is a justification for pretrial detention, if it is believed society is at risk if the accused is released. But mostly it is a money issue, with young people from poorer family unable to post bail for release before trial:
However, the ubiquity of pretrial detention effectively flips the traditional order of the justice system in which most people assume the punishment occurs after conviction. In fact, in New York City, 46 percent of defendants who did not make bail were not sentenced to incarceration, with about half never convicted and the other half receiving a non-custodial sentence such as probation.
Mr. Levin notes the costs for what seems excess pretrial detention, both now in prison costs, and later in the altered behavior of the imprisoned accused, apparently due to additional time in jail:
Then there is the cost to taxpayers of incarcerating individuals up until their trial, which amounts to approximately $9 billion a year. Perhaps most importantly, research has found that, when held two to three days, low-risk defendants have a nearly 40 percent greater likelihood of committing new crimes than comparable defendants held no more than 24 hours. This could be due to the loss of employment, housing, and even family during lengthy periods of pretrial incarceration.
(It seems possible though that this “40 percent greater likelihood” of future crimes is caused by other factors which also influence the decision to detain the accused. Angry demeanor and lots of tattoos maybe?)
The larger cost if detention is truly arbitrary is the injustice to those accused who are, or should be, considered innocent until proven guilty in court. (Angry folks with lots of tattoos aren’t always a danger to the public.)
A key problem are the incentives involved when pretrial detention decisions are sort of a trail system in themselves, but stacked against the accused:
With the prosecutor and judge both working for the government, the question arises as to who is going to advocate for the defendant during the pretrial process, including identifying and calling attention to facts that may indicate the defendant is a good candidate for a lower bail amount, diversion, or a pretrial supervision program.
Also, of course, students will have to separate problems with state judicial systems from those with the U.S. federal court system. A major advantage of federalism though, is the lesson learned from innovation and reform at the state level. Marc Levin notes national interest in Texas reforms:
In recent years, there has been a surge of interest in Texas prison reform. Prison, however, is just one component of the criminal justice system. It is jails, the front door of the justice system, that touch the most people. Nationally, there are 12 million annual jail admissions, about 19 times the number of those entering state and federal prisons.