Pre-Trial Detention: Pros and Cons

Pre-Trial detentions have the ability to cause damage on the criminal justice system in many different ways. One such way is the marginalization of groups that are already 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 offences that are criminal in nature, and years of tough on crime policies, that have done little more than create 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.

Pre-trial detentions punish those with less money and less education regarding their rights such as the poor and many minorities. Many petty offences cause those with less 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 for 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 offences that carry bail as low as a couple 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 status. 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.

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 offences coupled with tough on crime policies that see many people get arrested and detained, even for what was once a petty offence (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 cramped 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 ones 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 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 weary 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 offence.

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.

References

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

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