One of the many paradoxes in our criminal justice system is the fact that we hold people in jail pending trial even though, legally, they are innocent until proven guilty.^[1] People who are arrested often appear before a judicial officer for a pretrial detention hearing, where it is decided whether they will be detained in jail pending trial or released.^[2] Defendants can be released on bail or released under a conditional release plan, among other forms of release.^[3] Bail involves the temporary release of the accused person awaiting trial, on the condition that they pay a sum of money to guarantee their appearance in court. Conditional release, on the other hand, allows the accused to be released pending trial on a “condition or combination of conditions” that “ensure a defendant’s attendance at court proceedings and protect the community, victims, witnesses or any other person.”^[4] Over two-thirds of the more than 740,000 people held in local jails across the United States are people awaiting trial and the proportion has been increasing, rising from fifty-three percent in 1970 to sixty-four percent in 2015.^[5] This growth has often been attributed to the use of monetary bail. ^[6] While the monetary bail system has been more visibly criticized, the system of supervised release, discussed below, also criminalizes poverty and contributes to the growth of pretrial detention. Thus, discussions of criminal justice reform must include discussions about the inequities present in the supervised release system.

In order to achieve supervised release, defense counsel must convince the judge that there are “conditions or [a] combination of conditions” that would guarantee the defendant’s appearance at trial or the safety of the community.^[7] These conditions include standard prohibitions on substance use and possession of weapons and require regular check-ins with pretrial services or possibly monitoring.^[8] However, release plans vary depending on the crime committed; a plan could be as strict as home incarceration with 24-7 coverage by family and friends or it could allow the defendant to travel to and from work. According to a report by the United States Department of Justice’s Bureau of Justice Statistics (BJS), only thirty-two percent of defendants were released pretrial during a period from 2011–2018.^[9] Of those released from 2011–2018, seventy-nine percent had conditions on their release.^[10]

People of color and low-income people are disproportionately affected by this system and are more likely to be held pretrial than white defendants.^[11] One reason that people of color and low-income people are held pretrial more often than white defendants is because they often cannot find family and friends able to provide around the clock supervision for a supervised release plan. Many people in the lives of low-income people are also low-income, thus, it is less likely that they will have a large network of people available to either take off work to supervise them or have work that they can do remotely in the first place.^[12] According to the U.S. Bureau of Labor Statistics, workers who earned a salary higher than the 75th percentile were six times more likely to be able to work from home compared to workers earning equal to and below the 25th percentile.^[13] The wealth gap between Black and white Americans is the result of “four centuries of institutional and systemic racism.”^[14] The net wealth of a typical Black family in America is around one-tenth that of a white family.^[15] Furthermore, if a defendant has family members who would otherwise be suitable to provide supervision for a supervised release plan but have prior arrests or convictions on their record, they would be deemed ineligible by the court. This system makes it nearly impossible for poor defendants of color to be released pending trial, whereas wealthy and often white folks are very easily released back into the comfort of their homes.

States across the country do have different cultures when it comes to pretrial release. For example, the Eastern District of Michigan has consistently experienced release rates far above the national average with very high success rates.^[16] They credit “the common goal of pretrial justice shared by the system stakeholders and the ‘system culture.’”^[17] However, not every district has the same release rates. Pretrial detention rates in St. Louis and Baltimore are more than double the average pretrial detention rates for cities studied by Prison Policy.[18] If other districts implemented a strong culture of release, one that is maintained and subscribed to by all stakeholders in the process, it’s possible that release would become the norm rather than detention.

Pretrial detention criminalizes poverty and has other far-reaching negative consequences. People who are detained pending trial are “more likely to be convicted and to receive harsher sentences and indicate that even short periods of detention may make people more likely to become involved with the criminal justice system again in the future.”^[19] This perpetuates the cycle of poverty and incarceration and adds to the unnecessary and excessive detention of poor people and people of color in our jails and prisons. Whether you want to abolish the criminal justice system or reform it, reimagining and restructuring pretrial detention procedures to take into account the structural inequities present is a crucial step in that fight.

 

[1] U.S. Const. amend. V, VI, XIV.

[2] Léon Digard & Elizabeth Swavola. Justice Denied: The Harmful and Lasting Effects of Pretrial Detention 3, Vera Inst. of J. (April 2019), available at https://www.vera.org/publications/for-the-record-justice-denied-pretrial-detention.

[3] Bureau of Justice Statistics, U.S. Dep’t of Justice, Pretrial Release and Misconduct in Federal District Courts, Fiscal Years 2011-2018 4 (Mar. 2022), available at https://bjs.ojp.gov/library/publications/pretrial-release-and-misconduct-federal-district-courts-fiscal-years-2011-2018.

[4] Criminal Justice Section, Pretrial Release, American Bar Association, available at https://www.americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_standards_pretrialrelease_blk/.

[5] Supra note 2 at 1-2.

[6] Id.

[7] Supra note 4.

[8] Supra note 2.

[9] Supra note 3 at 1.

[10] Id.

[11] Wendy Sawyer, How race impacts who is detained pretrial, PRISON POLICY (October 9, 2019), available at https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/. Across the country, Black and brown defendants are at least 10-25% more likely than white defendants to be detained pretrial or have to pay money bail.

[12] Bernadette Rabuy & Daniel Kopf, How money bail perpetuates an endless cycle of poverty and jail time, PRISON POLICY (May 10, 2016), available at https://www.prisonpolicy.org/reports/incomejails.html.

[13] Bureau of Labor Statistics, U.S. Dep’t of Labor, Economic News Release on Job Flexibilities and Work Schedules, available at https://www.bls.gov/news.release/flex2.t01.htm.

[14] Liz Mineo, Racial wealth gap may be a key to other inequities, THE HARVARD GAZETTE (June 3, 2021), available at https://news.harvard.edu/gazette/story/2021/06/racial-wealth-gap-may-be-a-key-to-other-inequities/.

[15] Id.

[16] Timothy P. Cadigan, The Eastern District of Michigan: How Does It Consistently Achieve High Release Rates?, 2 Federal Probation 76 (2012).

[17] Id.

[18] Supra note 12.

[19] Supra note 2 at 5-7.