Criminal Justice

Innocent Until Proven Guilty? Issues With Pretrial Incarceration & Progress On Pretrial System Reform

May 16, 2019

American citizens are admitted to local jails over 10.5 million times each year, and, at any given time, there are more than 740,000 individuals being held in these facilities. While most assume that those in jail have been convicted and found guilty of a crime, more than 65 percent of jail inmates are simply awaiting their day in court.

The rate by which we incarcerate individuals pretrial has more than tripled since the 1970s, though differences exist among states and across the urban/rural divide. The length of time someone spends in jail awaiting trial has also increased significantly, from 14 days in 1983 to an estimated 23 days in 2013. As a result, many local communities are faced with jail facilities that are overflowing, raising questions about whether the pretrial justice system upholds the promise that individuals are presumed innocent until proven guilty.

Our current pretrial system relies largely on three mechanisms to ensure individuals return to trial: monetary bail, release on recognizance, and non-monetary pretrial conditions.

Types of Monetary Bail

Jurisdictions have generally relied upon one or more forms of monetary bail, with secured commercial bail being the most common form. A monetary bail system allows the defendant to pay a bail bondsman only a portion of the entire bail amount in return for the bondsman posting the entire amount to the court. The defendant only becomes liable for the entire bail amount if they do not appear in court, and the bail bondsman is generally allowed to retain the portion provided by the defendant. A secured bond can also be paid directly to the court and may be returned to the defendant if they appear to court.

The other most common type of monetary bail is an unsecured bond, which involves a promise by the defendant to pay a certain amount of money if they do not return to court. This is distinguished from a secured bond by the lack of any requirement to pay a monetary sum upfront to secure release.

Release on Recognizance

A release on recognizance (ROR) occurs when a judge releases a defendant upon signing an agreement that the individual will appear in court on the required dates.

Non-monetary Pretrial Conditions

Release with non-monetary conditions involves releasing the defendant without monetary bail but requiring the individual to meet certain conditions such as substance abuse testing, travel restrictions, or some form of electronic monitoring. These non-monetary conditions can also be paired with a monetary bail amount.

Bail Reform

Many individuals who are viewed as innocent by our legal system are being incarcerated for months before being tried, and as public awareness grows, so do calls for pretrial and bail reform. Many advocates recommend ending cash bail, arguing that the majority of individuals are held not because they pose a public safety risk, but because they cannot afford to pay the imposed bail amount. The most recent data available shows that the typical sum of monetary bail imposed by judges is $10,000 at a time when 40 percent of Americans are unable to pay an “unexpected expense” of only four-hundred dollars.

Innocent People Pleading Guilty

Pretrial incarceration may also make someone more likely to plead guilty to a crime they did not commit just so they can move on with their lives. Recent research seems to suggest that pre-trial detention increases an individual’s likelihood of pleading guilty or being convicted, notwithstanding the conditions of their case. Additionally, defense attorneys have provided anecdotal evidence of clients who experience the hardship of pretrial incarceration and simply take the deal offered by the prosecutors instead of going to trial, even though they are innocent.

Public Perception of Pretrial Reform

A 2018 national survey completed by Stand Together Trust and the Pretrial Justice Institute found that 78 percent of Americans think that the “current system favors the wealthy,” with 57 percent of respondents indicating that “practice of jailing people who cannot afford money bail before trial” should end. The majority of those surveyed agreed that our pretrial system should be primarily concerned with public safety and support alternatives to pretrial detention.

Pretrial Services and Supervision

Pretrial services and supervision programs allow more individuals to be released back to their community while awaiting trial. These programs give judges a middle ground between detention and release, requiring supervision by a court-appointed agent and the delivery of certain services or programs. These programs are a more formal method of imposing traditional non-monetary conditions of release and usually involve conditions such as drug and mental health treatment, electronic monitoring, education, community referrals, and curfew monitoring.

Initially launched as a pilot program in the 1960s, the Pretrial Services Agency (PSA) for the District of Columbia provides its services to more than 17,000 defendants each year. It is now viewed as the national model for other jurisdictions across the country that are seeking to implement pretrial supervision. In 2018, judges released 85 percent of defendants on the advice of the PSA and almost 90 percent successfully returned to court without being rearrested. This is substantially better than the failure to appear (FTA) rates in other jurisdictions, which can be up to 30 percent depending on the offense in question.

Risk Assessments

In the current pretrial system, judges make most detention and bail decisions through a subjective, tradition-based process that relies on incomplete information and the judge’s own individual worldview. Jurisdictions have recently begun to utilize risk assessment tools to inform these decisions with evidence and data that can help judges predict the risk of a pretrial re-arrest or an FTA. These types of tools are used throughout our justice system in sentencing, to determine the provision of prison programming, and at various other phases of the justice system. The phrase risk assessment covers a broad range of tools, the most common being computerized, algorithmic assessments.

On the surface, these tools may appear similar, but each uses a variety of factors to determine risk with differing levels of effectiveness. The weight of the evidence, when viewed holistically, supports the conclusion that risk assessment tools are better than raw human judgment alone in predicting risk. Though these tools don’t explicitly include race as a factor to determine risk, some groups have alleged that they have a disparate impact on minorities and individuals with less financial resources. However, some scholars have countered these allegations by noting that the tools themselves are not the source of any potential bias, but the underlying data utilized in the prediction contains unequal arrest and crime rates among different groups.

Kentucky was an early adopter of risk assessment tools, starting with reforms in 2011, and has utilized some form of assessment since the 1970s. Research on Kentucky’s adoption of the Public Safety Assessment (PSA) shows a significant initial impact on pretrial release and the number of individuals detained with a low bail amount. However, these effects lessened over time as judges returned to their previous practices, with both FTAs and rearrests increasing after the adoption of Kentucky’s reforms.

Speedy Trial Statutes

The right to a speedy trial is enshrined in both the 6th Amendment to the U.S. Constitution and in over forty state constitutions. In practice, however, it is largely forgotten by our overwhelmed and under-resourced justice system. In a recent case, the United States Court of Appeals for the Second Circuit found that the defendant’s “constitutional and statutory rights to a speedy trial were violated by his nearly seven years of pretrial detention” after both the judge and prosecutors significantly delayed the hearing of his case. And this is not an isolated incident. A recent report from Louisiana found that at least 85 individuals were held in a local jail for over four years without a trial. Outrage isn’t limited to appellate judges reviewing lower court practices. A recent survey found that 86 percent of Americans believe that someone accused of a crime should not have to wait more than 30 days in jail to have their day in court.

In 2018, the Supreme Court of Missouri announced reforms that seek to ensure a defendant’s right to a speedy trial is upheld. States that adopted similar reforms have seen mixed results. Research shows North Carolina’s reforms reduced delays by up to 50 percent but other research from Connecticut shows that its statute did not reduce delays in any manner. While the research may be mixed on the actual impact of reforms, the reality is that individuals are detained for significant lengths of time before trial while they are still considered innocent. This results in negative impacts on their family, financial future, and the ultimate outcome of their case.

Other Pretrial System Reforms

Recent policy changes based on behavioral science concepts have shown that minor changes in court policies can significantly improve the pretrial system with minimal upfront costs and long-term savings, specifically in form redesigns and court date reminder systems. In New York City, a simple redesign of a summons form reduced FTAs by 13 percent and reminder messages reduced FTAs by 26 percent.

Expanding citations in lieu of arrest and increased diversionary programs can prevent individuals from entering the court system in the first place, preventing the barriers imposed by the collateral consequences of incarceration. Citations are currently used in many jurisdictions across the country as an alternative to arrest when certain circumstances are present. These citations offer potential benefits such as reducing the cost of pretrial incarceration, enhancing police-community relations, and increasing law enforcement efficiency.

Pretrial diversionary alternatives seek to redirect defendants from the traditional criminal justice system before or after arrest and before trial. The body of research studying pretrial diversionary programs, used in forty-eight states, shows that they reduce incarceration, recidivism, and spending on public safety.

Historically, our justice system has relied on a monetary bail system to determine whether someone should be released from pretrial incarceration, but our system should focus on public safety, not someone’s ability to pay a monetary sum. While there are alternatives available to our current pretrial system, effective alternatives are still unclear. Only more research and practical experience from jurisdictions adopting such reforms will reveal the most effective way to structure our system.

—Jeremiah Mosteller, Policy Liaison, Criminal Justice Reform