“[C]lose to three quarters of a million people reside in America’s jail system…Across the country, nearly two thirds of all inmates who crowd our county jails – at an annual cost of roughly nine billion taxpayer dollars – are defendants awaiting trial…Many of these individuals are nonviolent, non-felony offenders, charged with crimes ranging from public petty theft to public drug use. And a disproportionate number of them are poor. They are forced to remain in custody – for an average of two weeks, and at a considerable expense to taxpayers – because they simply cannot afford to post the bail required.” This quote is from a speech given by the former Attorney General Eric Holder at the National Symposium on Pretrial Justice in 2011. It is encouraging to see the nation’s principal legal officer and head of the US Department of Justice acknowledging the issues of pretrial detention, especially within regards to misdemeanants. While the nine billion dollar figure noted above is concerning, the truly frightening cost of pretrial detention is the human cost. When I say “human cost”, I am referring to the negative effect that pretrial detention has on the mental and physical health, employment, and family and community interactions of those who are incarcerated. In other words, I am a referring to how getting arrested for a simple misdemeanor can destroy peoples lives and the lives of those around them.
Before we address the human cost of pretrial detention, it is important to look at why this problem exists. Why are so many un-convicted people spending so much time in county jails? Santa Clara County has a particularly high rate of pretrial detention, making up 73% of the total jail population. Although precise data are not available for Santa Clara County, the Office of Pretrial Services estimates that, excluding defendants detained on administrative holds (e.g., due to a warrant for another jurisdiction), well over 90% of unsentenced defendants in County Jails are detained because they can not make bail. That means over 65% of the people in Santa Clara County jail are there because they cannot afford to post bail. You don’t need research or data to tell you that the majority of people that are affected by this are lower income people. But, just in case, consider the fact that nationwide roughly thirty percent of state court defendants assigned bonds of less than $5,000 are detained. Further, in New York City, among defendants arrested in 2008 on misdemeanor charges and given a bail amount of $1,000 dollars or less, only 13% of defendants were able to post bail at arraignment. Simply put, a lack of money to pay bail results in the pretrial loss of liberty. It is rare to learn of a wealthy defendant who is unable to post bail. As the great Alexis de Tocqueville once said, “Bail is hostile to the poor and favorable only to the rich. The poor man has not always a security to pledge…”
Consider the fact that a survey of U.S. households by the Federal Reserve found that only 48 percent of respondents could completely cover a hypothetical emergency expense costing $400 without selling something or borrowing money. Imagine you are one of the millions of Americans who are living paycheck to paycheck. What would you do if you were arrested following a temporary moment of bad judgment and you couldn’t afford to post even the most modest bail amount? How long before you lose your employment, housing, health, or even custody of your children? Could you make it a week? A month? A year? This is the reality for countless people across the country. The impact of excessive pretrial detention can be profound despite the fact that many of those held in pretrial detention will have their charges withdrawn, while others will be acquitted at trial. For example, in New York City, one in five misdemeanor detainees will not be convicted. Further, data from New York shows that 8 out of 10 convicted misdemeanor arrestees do not receive jail time. If the underlying crime doesn’t warrant jail time, then why should these people be subjected to the punitive experience of incarceration while awaiting trial?
Setting aside the personal harm caused by pretrial detention, the legal outcomes for those who await trial behind bars, even for a short amount of time, are much worse than the outcomes of those who bail out. Data on over 150,000 defendants booked into jail in Kentucky was used to investigate the relationship between pretrial detention and sentencing. The relationship between being detained pretrial and being sentenced to jail or prison was found to be significant. While the relationship was found to be significant for all risk levels of defendants, it was the most pronounced for low-risk defendants. Low-risk defendants who are detained for the entire pretrial period are 5.41 times more likely to be sentenced to jail and 3.76 times more likely to be sentenced to prison when compared to low-risk defendants who are released at some point before trial or case disposition. This makes sense considering a defendant’s appearance and attitude following days, weeks, or years in jail is likely not to inspire confidence in the judge or jury. Further, pretrial detention was also found to be related to the length of sentence, in that the jail sentence was 3.49 times longer for low-risk defendants who were detained for the entire pretrial period. Put differently, low-risk defendants, the vast majority of whom are misdemeanants, receive far longer sentences simply because they cannot afford bail. Basically, we are punishing people for being poor. Even for those cases that may have otherwise resulted in an acquittal, pretrial detention pressures defendants into giving up their right to trial and accept a plea bargain in order to escape the horrors of incarceration.
Being convicted, and subsequently incarcerated, for any amount of time is going to have a destabilizing effect on one’s life. However, research has shown that a defendant’s life and ties to the outside world may become destabilized after only a few days of pretrial detention. Using the same dataset from Kentucky discussed above, researchers found that detaining low-and moderate-risk defendants, even just for a few days, is strongly correlated with higher rates of new criminal activity both during the pretrial period and years after case disposition. When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours. When held 8-14 days, low-risk defendants are 51 percent more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours. The effect of short-term detention has become the basis for the pretrial justice institute’s “3dayscount”, which is a nationwide initiative that seeks law and policy changes to improve pretrial practices. The Pretrial Justice Institute has found that “[e]ven three days in jail can be too much, leaving low-risk defendants less likely to appear in court and more likely to commit new crimes—because of the stress incarceration places on fundamentals like jobs, housing and family connections.”
It is shocking to see how several days in pretrial detention can have such drastic consequences on one’s legal situation. The horrifying fact is that when people are subject to pretrial detention, because they are not granted own recognizance release or cannot afford bail, they are likely to spend more than just a couple nights in jail. In Santa Clara County, those defendants remaining in pretrial custody face an average detention length of 28 days for misdemeanor offenses. A month in jail and they have yet to be convicted of any wrongdoing. The current system may not be good at a lot of things, but it sure is great at setting up indigent people for failure.