Overuse of Pre-Trial Detention

The criminal justice system is such a wide and varied field that at times it seems impossible to decide which issues should receive the most attention. Indeed the subject can have far-reaching implications and many issues within the field will bleed out into all of society and even those who believe themselves immune from the system by way of not having direct contact with it, are in fact affected greatly. One such topic is that of pre-trial detentions. This type of detention has been the subject of defense and scrutiny for decades and it is one that all nations with a structured criminal justice system face. In the USA, pre-trial detentions have been both the cause of great strain on the court and corrections field and a victim of strain brought by the courts and the corrections system. Pre-trial detentions are an important area of study and it is widely believed that the use of this form of detention should be greatly reduced so that the detrimental effects felt by its overuse for the last few decades can be minimized.

Pre-trial detentions bring people who have not yet been convicted of any crimes into contact with the jail system for an amount of time that can range from days to weeks and months, depending on the reason for their arrest. This subject is of importance for everyone because these detentions have resulted in an overburdened court system that cannot handle the load of cases it has to hear, in essence affecting all individuals in the courtroom. In addition to this importance, it has also resulted in overcrowded jails that have in many states been forced to spend millions on more jails, and even privatize jails. All of these results place an economic strain on all the taxpayers who have to foot the bill for these problems. Ultimately, one of the highest costs of pre-trial detentions is the human cost that is immeasurable. Families have to go without loved ones who have not even been convicted of crimes, causing them to lose members who are breadwinners. The practice also has the effect of punishing groups of people who are already marginalized in our society, like the poor and minorities. Those with lower educations and an inability to master the English language are also taken advantage of due to their incapacity to maneuver the court system and the complicated process of bail and legal rights. The damage to society can also be felt due to the fact that people are exposed to jails and in turn become the victims of stigmas associated with those who have been in jail at all. These individuals who truly do not belong in the criminalized environments of jails are exposed to people they should not be exposed to. And while some may believe that it is a good “lesson”, the reality is that these individuals have been convicted of nothing. The pressure has also pushed many into plea deals just to escape the pre-trial detention and free themselves from their confinement, further damaging a greater portion of our society. All of this leads to a community that learns to have no trust or respect for the institutions that claim to be about process and fairness that in actuality appear to be about privilege and money.

Pre-trial detentions punish those with less money and less education regarding their rights such as the poor and many minorities. Many petty offenses cause those with fewer resources to have to remain in jail while those with money can simply walk out. When an individual is arrested the first place they tend to go is a local jail. From this point, the registration process is completed either immediately upon entry, or within a very short amount of time. After this process has been completed, depending on which county or state one is in there is an option of bailing oneself out of the facility. There are offenses that carry bail as low as a couple of hundred dollars (Phillips, 2012). This is an amount that may appear reasonable to some, however, there are those that this sum is unreasonable for when taken into consideration with their incomes and socio-economic circumstances. Those with less money are already at a disadvantage because they must rely on public defenders to help them in courtrooms. While public defenders do the best possible job that they can, they have been shown to be less effective than private counsel. This is due to less funding, less help, higher caseloads, and a plethora of other problems. An individual with private counsel is less likely to stay in jail pre-trial and is also less likely to get a negative outcome from their case (Wheeler & Wheeler, 1980). It has also been affirmed that those who remain in jail pre-trial have a higher likelihood of receiving less than positive dispositions at the end of their trials and are even coerced by DA’s into plea deals just to be able to escape the misery of their pre-trial detentions (Kellough & Wortley, 2002). This creates a cycle where between pre-trial detentions and public defenders, those with less money are able to access less justice, fairness and equality, both short term, and long term.

Pre-Trial detentions have the ability to cause damage to already marginalized groups that are at a disadvantage. This is done by making the issue of freedom before a trial a matter of money, and that makes the chasm between justice for all, and justice for those with money, even larger than it is today. In addition to the issue of creating a financial court system, there is also the concern that these detentions have caused massive increases in jail populations that have culminated into jails that are violating basic inmate rights due to a lack of space and funding. This backlog is due to an ever-increasing number of offenses that are criminal in nature, and years of tough on crime policies, that have done little more than creating a nation where millions have records. The use of pre-trial detentions also ensures that even those who have a favorable outcome in their cases will many times have sat in jails for weeks waiting for a trial. This has weakened confidence in the system, while also costing taxpayers an exorbitant amount of money in jail funding.

The overuse of Pre-Trial detentions has caused overcrowding of jails due to the backup many courts have in cases waiting to come in front of a judge. This backup is due to the large numbers of jailable offenses coupled with tough on crime policies that see many people get arrested and detained, even for what was once a petty offense (Fellner, 2010). Many jails are now so overcrowded with low-level offenders, and first-time offenders, that their jails are unable to maintain basic levels of inmate rights. Jails have been forced to turn gyms and supply rooms into holding cells that are utilized for long term use. These rooms were never meant to be utilized for these purposes and therefore do not have toilets or sinks. In addition to not being outfitted correctly, dozens of beds are crammed into these tiny spaces allowing each individual mere feet to walk around in. These small spaces are occupied by anywhere from 10-50 individuals, and therefore require inmates to not even leave their bunks for hours and hours at a time. In more severely crowded jails there has even been the use of floors as beds with the lack of even overflow housing. Healthcare for those incarcerated has also been compromised and this itself has led to legal action reaching State Courts, Appeals Courts, and the Supreme Court. Some states have been forced to start a process of releasing inmates just to alleviate this problem. In addition to the burden on the courts, taxpayers must literally pay for the hundreds of jails that have been built around the country to accommodate this booming population.

The use of pre-trial detentions causes more people to be exposed to the jail system and causes the stigma and criminalization of more individuals than is necessary. Even those who at the end of weeks or sometimes even months of waiting for a trial that turns out in their favor, have now been exposed to the criminal justice system. Many studies have shown over the last few decades that jails and prisons do more to create future criminals than to deter them (Neubaum & West, 1982). There is a culture within these facilities that brings potential and actual criminals together. This environment is a place where criminal activities and ideas actually flourish and individuals learn more about how to become a criminal. The fewer people exposed to this the better. However, with more and more people having to stay for extended periods of time in jail due to courts that simply cannot handle their caseloads, the opposite is now true. This is a con to the use of pre-trial detentions that should be a concern for everyone, including those not involved in the criminal justice system. These individuals in jail will one day, sometimes very soon, be a part of our society. This means that they are not a concern for just courts and jails, but for every single individual. There is no need to criminalize and marginalize more and more members of society. The increased education in negative behaviors learned in jail cannot benefit anyone. Pre-Trial detentions meaninglessly and arbitrarily incarcerate thousands of people in confined overcrowded spaces. This confinement rarely distinguishes degrees of guilt or severity of the reason for detention. Therefore, immensely large numbers of people are exposed to a system that they should have never been exposed to at all.

There are those who support this system and state that it is progressive and that the issues lay not with the use of pre-trial detentions, but with other factors that are not the fault of these detentions. The detentions themselves are not inherently unfair and are in fact one of the more liberal ones found around the world. This positive outlook is based on the fact that even those deemed to possibly be a risk, are offered bail amounts, just very high ones. With respect to the issue of money, it can be argued that having the ability to pay a fee to secure one's release is the only manner in which return to court can be verified. In addition to this, there is the possible use of ROR so that those deemed not a threat who appear trustworthy enough to return for the trial are let go with no monetary conditions (Phillips, 2012). This still would mean that the individual would be held until an initial hearing, not including the very first hearing that would have been exclusively for bail. The pro to this is that with a monetary incentive, and more time in jail before the initial hearing, rates of absconding have not been high across the board. Not to say that absconding does not happen.

The overall effect of the overuse of pre-trial detentions has been a loss of trust and respect from many sectors of the nation. A loss of faith and respect for the legal process is created in people who come to view pre-trial detentions as a system that punishes the poor and rewards those with means to get out of jail before their case is resolved. It has also created distrust from a public that is wary of the increased costs of these jails, while results seem marginal. This has increased with the attention the issue has received from human rights watch groups and grassroots social justice groups. The issue is also important to those who work in the jail system and the courts. Many there also see a major concern over the manner in which this form of justice has caused damage to the credibility of their fields.

Supporters of pre-trial detentions believe that their use leads to lower rates of dangerous criminals being released to commit additional crimes. There is also the belief that those who are detained and could not afford bail should not be released because of a likelihood of absconding. An argument that this is unfair is rebuffed by supporters on the grounds that risk assessment is done by jails, police, and courts to determine if an individual should be released without bail, or on ROR. The major pro to these types of detentions is that it assures individuals will come to their court cases because they are still in custody. The other major pro is that by detaining so many people, it is more likely that additional crimes can be avoided. It is a positive that before an actual trial, those who are the most danger to others are not able to commit and additional crimes while they are waiting for a disposition to their initial perceived offense.

These pros that are defended, and used to justify pretrial detentions, are the ones that are currently in use in most parts of the country. Whether or not these pros can be debated by quantifiable data is of little concern to supporters because the truth of the matter is that if you detain these individuals, there is no arguing that they cannot commit additional crimes outside of the jail. This is in no way meant to state that they would commit crimes if they were outside of the jail. However, it is important to understand that the general public, that is outside of the scope of understanding criminal justice data, cares only about their perceived safety, and individual that are incarcerated are more favorable to them than those who are released on bail and could “possibly” commit an additional offense. This poses a challenge to criminal justice professionals, placating the fears of the public and informing them of the data that counters it, 2 things that do not always go together.

I personally take great issue with the overuse and reliance on pre-trial detentions for the aforementioned reasons. This form of punishment has led to the criminalization of millions of people who should never have been exposed to the criminal justice system to this extent. Jail should be a place to be punished in, not a place to coerce and punish those who have not yet been convicted. Individuals who sit in jails for long periods of time waiting for a trial or some conclusion to their case are in essence being pre-punished. If an individual is found to be not guilty, or a case is dismissed, who will then remove the scars that were left on that individual, their family and their community? No one is accountable for any of it, and justifiably, this individual and those around them will come to distrust and in many cases hate the system that subjected them to this process. Furthermore, many of the people who are held pre-trial are there because they simply could not understand the process or their rights, or even worse, simply had no money. The latter is of immense concern for all in the system, and even those outside of the system. There is no reason that in a nation like the USA justice and freedom should be reserved for those with money only. As it stands those with money are at a disadvantage since they are forced to rely on public defenders. This is no debate against them, but it has been shown that they are overworked and less effective than more expensive private counsel (Clark, 1998). Pre-trial detentions, coupled with no access to private counsel has turned the court system into one where those without money are not able to have access to freedom.

Of equal concern to me is that increased use of pre-trial detentions, some lasting long periods of time, coupled with mandatory sentences has led to a booming jail population. This result has had such damming ramifications that it alone should be the reason for great concern for every citizen in the country. As if the situation of being jailed alongside convicted offenders was not enough, those being held pre-trial are forced into temporary housing inside jails that are out of space to house even regular inmates. This results in cramped conditions that cause more damage to the psyche of an individual who is still technically innocent in the eyes of the law. These supposedly innocent people are straining the already strained correctional facilities. This has caused many states, like Pennsylvania, so privatize many jails. Private jails, as well as county run jails, cost millions to build, and millions to maintain. The justification for the cost is the inhumane conditions of the currently overcrowded jails. Instead of spending millions on creating more space to house people, the professional in the system should be asking why the jails are so full. When jails have huge populations of individuals housed for VOPs and other charges that have not even been brought in front of a judge for adjudication, a rational response would be to question jailing these individuals in the first place. Instead, the lobby of private jails is going hand in hand with legislation, tougher sentencing and strict pre-trial detention laws just to fill up cells. The criminal justice system is a domino effect, and behind many of these decisions are invisible figures making calls based solely on profitability. While this may seem like a conspiracy theory, but one only needs to look at the state of Pennsylvania where a judge was recently arrested for purposely sentencing even first time offenders to juvenile detention centers just for the purpose of filling up the private jail he was getting money from (Juvenile Law Center). This is something that can be happening in numerous states, and the public just does not know about it yet. So while pre-trial detentions may seem like “not a big deal”, they are contributing to a bigger picture that is causing irreversible damage to the lives of those who do not have the luxury of money, resources and an education that gives them legal insight. Pre-trial detentions are taking advantage of people who are already at a disadvantage.

Reducing the reliance on pre-trial detentions would be a great way to minimize the damage that those subject to it would have to face. Furthermore, those with money should not be punished for not being able to pay for justice and fairness in the courtroom and corrections process. Reducing the reliance does not mean that every individual should be released, and I believe that assessments should still be conducted to determine that certain individuals are too much of a public security risk to release. The overreliance on the practice, however, has little to no value to the community it aims to protect and rather subjects it to the detrimental effects of being imprisoned before a verdict has even been handed out.

Pre-Trial detentions have caused a great deal of damage in our courtrooms and in our jails. Their use has done nothing but adds to the deplorable conditions that can be found in jails all across the country. Further, this backup in courtrooms that have filled the jails past capacity has justified many states to privatize the jail systems. This demoralization of people who have not been convicted, and preference for those with money, is weakening the trust that people have in the entirety of the legal process, and they are right to feel that way. Our legal process should strive for equality and fairness, and as long as pre-trial detentions are used to tip the scales against those without means, then justice slowly becomes something for people with money, and that will truly be the end of our ability to consider ourselves a humane and fair society built on justice and equality for all.

References

Clark, L.D. (1997-1998). All defendants, rich and poor, should get appointed counsel in criminal cases: The route to true equal justice. Marquis Law Review, 41, 81.

Fellner, J., (2010). The price of freedom bail and pretrial detention of low-income nonfelony defendants in New York City. Human Rights Watch, P. 1-22.

Kellough, G., & Wortley, S. (2002). Remand for plea. Bail Decisions and plea bargaining as commensurate decisions. BrJ Criminology, 42, 186-210.

Neubaum, J. C., West, A. S., Denver Research Institute, & National Institute of Justice (U.S.). (1982). Jail overcrowding and pretrial detention: An evaluation of program alternatives. Denver, Colo: Social Systems Research and Evaluation Division, Denver Research Institute, University of Denver.

“Luzerne Kids for Cash Scandal” Juvenile Law Center. Web. 10, Dec, 2013. Accessed at: http://www.jlc.org/current-initiatives/promoting-fairness-courts/luzerne-kids-cash-scandal

Phillips, M.T., (2012). A decade of bail research in New York City. New York City Criminal Justice Agency, Inc., P. 1-125.

Wheeler, G.R., & Wheeler, C.L. (1980). Reflections on legal representation of the economically disadvantaged: Beyond assembly line justice: Type of counsel, pretrial detention, and outcomes in Houston. Crime and Delinquency, 26, 319-332.