Our pretrial system favors those with money. That needs to change.
On any given day, roughly 476,000 citizens are incarcerated in our nation's jails prior to any trial or conviction. These men and women now comprise about 65% of the jail population and nearly a quarter of our nation's incarcerated population.
When an individual is arrested and charged with a crime, a hearing takes place where a judicial official weighs the person's risk of flight or danger to the community. A judge can decide to hold the person until trial or impose conditions for pretrial release, such as a bail. That bail often includes a deposit to ensure the person comes to their court date without violating their conditions of release.
In American law, these financial requirements for release were seen as a way to provide strong incentives for people to behave responsibly in the community before court appearances. Advocates for justice have long feared that hefty bail amounts can unjustly burden the poor. That's why James Madison wrote a prohibition against "excessive bail" into our Bill of Rights.
While the Constitution prohibits excessive bail and guarantees the right to a speedy trial, it does not define a set time limit for pretrial detention. Many people are unable to post the amount of money required for their release before trial, or they waive that right in hopes of getting a better plea bargain. The time an individual spends in detention prior to trial varies by jurisdiction from weeks to months. The median wait from arrest to adjudication for detained felony defendants is 68 days, but many are kept far longer, with some waiting years to have their day in court.
Our current system for determining pretrial detention should unsettle all American citizens. It stands in the way of just process, disproportionately burdens the poor, and perpetuates crime.
- Leviticus 19:15
THE PROBLEMS WITH PRETRIAL DETENTION
The justice system is not always just, especially for the poorest among us. The ability to pay money bail—not whether someone poses a serious risk to society—significantly impacts why most pretrial detainees remain in custody today. Two people accused of committing the same crime may receive different outcomes based on wealth. One stays in jail pending trial, the other is released solely because he has bond money.
If how much cash you have is the only factor determining your freedom, then the criminal justice system is unjust. It favors the rich at the expense of the poor. This is contrary to the witness of Scripture. Pretrial justice should matter to Christians because justice matters to our Lord. Leviticus 19:15 says, "Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly" (NIV).
In addition to disproportionately burdening the poor, excessive reliance on pretrial detention also contributes to more crime. One study concluded that "the pretrial detention of 10,000 people charged with misdemeanors could be expected to result in 400 additional felonies and 600 more misdemeanors than if they had been released pretrial." That’s because a pretrial detention can lead to the following in the lives of those held in pretrial detention:
- Spiraling into addiction.
- The unraveling of family relationships.
- Sustained contact with peers who more extensive criminal histories.
A BETTER WAY FORWARD
Courts should only use pretrial detention when there is objective evidence that someone poses an immediate risk of harm to public safety or a strong risk of not returning for their trial. And pretrial conditions of release should be used in the least restrictive and most effective ways possible to advance public safety and ensure a person's appearance in court.
Lawmakers should replace our current method of determining pretrial detention through monetary bail with more just approaches that deliver better results. Like risk assessment tools. These tools use a variety of factors to estimate an individual's likelihood of appearing in court without a new arrest and guide judges in assessing whether to order detention or release with or without specific conditions. Risk assessment tools need to be reasonably transparent, open to continued refinement and feedback from outside stake holders, and constantly updated with new criminal justice data. When these measures are in place and applied with fidelity, we believe risk assessment tools have the power to positively transform pretrial practices.
Prison Fellowship® recommends lawmakers explore the wider use and continued improvement of pretrial risk assessment, building upon earlier reforms in New Jersey and county governments in Iowa, North Carolina, South Dakota, and elsewhere. In addition, we suggest that lawmakers experiment with improved forms of pretrial supervision and consider reduced reliance on cash bail.
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