In America, we tell ourselves, those merely accused of crimes are presumed innocent, while those convicted of crimes may be sent to jail or prison.
But in reality, we treat most people in this country who are accused of crimes exactly the same as those who have been convicted: they are detained in jail and cut off from family, work, and legal counsel. How did this come about, and how can the ideal and reality be reconciled? That’s the question we posed in “The ‘Radical’ Notion of the Presumption of Innocence.”
The paper was written as part of Columbia University’s Square One Project and can be found in full here.
In it, we argue that pretrial detention in America has come unmoored from its constitutional and historical foundations and become a threat to the due process rights of Americans accused of committing crimes—especially misdemeanor crimes.
We put the word “radical” in scare quotes to connote irony: the presumption of innocence, a bedrock principle of English and American criminal law, today has been rendered toothless. Historically, this presumption wasn’t just an abstract ideal; it afforded meaningful protections to the accused. Almost every state in the country, by constitution or statute, recognizes that defendants have a presumption to pretrial release under bail conditions that are no more onerous than required to ensure the defendant’s return.
But starting in the 1980s, as part of the tough-on-crime “revolution,” changes to federal law made it easier for judges to remand accused but un-convicted persons (or set their bail at an impossibly high amount, which amounts to the same thing) based on a finding of “danger to the community.“
States soon followed suit. Studies show that now, in the federal system and in some jurisdictions, 80 percent or more of un-convicted accused are detained for days, weeks, or even months before their cases are resolved. Detentions often take place on the basis of rushed bail hearings, the most industrialized feature of America’s assembly-line approach to criminal justice. In most cases, defendants don’t even have the right to be represented by counsel and have just two or three minutes to argue for their freedom.
There is no doubt that defendants are prejudiced by pretrial detention. Persons in jail have little practical opportunity to assist their attorneys in preparing a case for trial. Even a relatively short stay in jail can cause loss of a job or housing, reducing defendants’ ability to marshal the resources needed to go to trial. The desperation jailed defendants feel causes many to plead guilty, even when the state’s evidence is weak. Prosecutors are well aware of this leverage, which is why they almost always seek no or excessive bail. This practice is especially damaging to misdemeanor defendants who often spend more time in jail before trial than they ever would if they went to trial and were found guilty.
This reality grounds our statement that pretrial processes that are supposed to serve the presumption of innocence instead have come to resemble findings of guilt. Deprivation of freedom is the most serious criminal sanction our nation imposes, short of the death penalty. Pre-trial detainees are not people who have been duly sentenced to this punishment. Indeed, they are supposedly protected by a legal presumption that, we like to tell ourselves, can only be overcome by overwhelming evidence that establishes guilt beyond a reasonable doubt.
Yet the accused are routinely treated exactly the same as those who have been convicted. Pre-trial detention is so common that more than two-thirds of the 746,000 people held in jails in America are pretrial detainees. Essentially, we have turned jails into massive pre-trial detention centers, to which people are sentenced on almost no evidence and with little process, to watch their lives be destroyed as their attorneys work out pleas that will often send them home almost immediately.
We impose this miscarriage of justice on defendants who have been accused of both violent crimes and non-violent petty offenses, because of a finding that someone is “dangerous.” But this finding usually occurs after a two- or three-minute bail hearing, often without opposing counsel, frequently without any meaningful assessment of risk. The rich make bail and the poor are remanded because they can’t pay trivial amounts of money. Is there any universe in which this process serves the presumption of innocence?
There is little evidence this system makes the community safer. In fact, there is evidence that pretrial detention is criminogenic—actually increases crime. One study found that after only two or three days in detention, individuals deemed to be “low-risk” were about 40 percent more likely to commit a crime upon release when compared to other low-risk individuals who were detained for 24 hours or less. This finding makes sense: homelessness, joblessness, strained family relationships, are factors that increase the likelihood of crime. They are all also obvious outcomes of even a short stint in jail. A practice designed to make the community safer likely increases crime while destroying lives to boot.
Widespread pretrial detention is especially unsupportable today when there are mechanisms to monitor and restrain those persons who really do those who present a threat. Near-perfect GPS tracking—either through bracelets or cell phone monitoring—are useful and effective tools to address concerns about danger to the community. These programs have been shown to work in localities that have reformed bail laws to decrease the number of pretrial detainees.
The fact that something is common does not make it just, effective, or wise. We can imagine a better criminal justice system. Reforming America’s broken pretrial detention system would be a major step forward. The irony is that this would not be a bold or unprecedented reform. It would simply be a return to the foundational American principle that people accused of crimes are presumed innocent and that the state’s burden in attempting to deprive citizens of their liberty is a heavy one. “Radical,” indeed.
—Arthur Rizer is the director of criminal justice and civil liberties at the R Street Institute. Arthur is also an adjunct professor of law at George Mason University’s Antonin Scalia Law School.
—Tracey Meares is the Walton Hale Hamilton Professor at Yale Law School and the founding director of the Justice Collaboratory.