The leading arguments in favor of restricting bail and pretrial release are that those who are accused of crimes pose a danger to society and will fail to appear at their court date. Former Attorney General Holder, the highest ranking legal officer in the country, recently noted that non-violent defendants “could be released . . . and allowed to pursue or maintain employment, and participate in educational opportunities and their normal family lives—without risk of endangering their fellow citizens or fleeing from justice.” Yet two-thirds of the 500,000 un-sentenced individuals currently awaiting trial in jail are low risk, meaning they are identified as “posing no significant risk to themselves or the community with a likelihood of reappearance at subsequent court dates.” These “low risk” individuals, when forced to remain in jail due to their financial status, face very high risks to their socioeconomic status. The purpose of this post is to explore the socioeconomic consequences pretrial detainees are forced to endure due to their incarceration.
The Supreme Court has endorsed the idea that an arrest is an act that can “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and friends.” It logically follows that that excessive, and even short term, pretrial detention can make these problems exponentially worse. Continue reading “The Socioeconomic Consequences of Being Accused of a Crime”
In the eyes of the law, pretrial detention is not punishment. In Bell v. Wolfish, the Supreme Court of the United States held that pretrial detention is supposed to be “non-punitive.” That is, pretrial detention is not supposed to inflict, or constitute, punishment. The case involved a challenge to the conditions of confinement in a federal jail in New York. The Court determined conditions that amount to punishment violate a pretrial detainee’s due process rights. Pretrial detainees cannot be punished because they have not yet been convicted of a crime.
Ask yourself: “Would I consider spending time in jail to be punishment?” My guess is that the vast majority of people would agree that spending any amount of time in jail is punishment, regardless of the conditions. The horrific conditions of the prison system are well known, given prisons’ prevalent depiction in movies and pop culture, yet jails are just as bad, or in some cases worse. Typically, jails are short term, locally-operated facilities that hold inmates awaiting trial or sentencing and inmates sentenced to one year or less, while prisons are long-term facilities run by the state or federal government and hold inmates with sentences of more than one year. Pretrial detainees, who are presumed innocent, may be subjected to worse conditions than many of the most hardened criminals because they are housed in jails. One individual who was spending time in a county jail facility noted, “I would have preferred to go to prison” because “their medical facilities are better, their food is better – everything is better. They have TV, radio, yards.” As a member of the Santa Clara jail commission put it, “when you find yourself hearing ‘Gee, I wish my son was at San Quentin,’ that sure is an indictment of our jails.”
Now consider the fact that pretrial detainees are subject to the same conditions as those who have been convicted. Continue reading “Can Jail be Non-Punitive?”
“[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? Continue reading “Pretrial Detention and Legal Outcomes”
While jail is intended as a punitive measure, the majority of the jail population consists of unsentenced individuals who are awaiting trial. For instance, in Santa Clara County, over seventy percent of the jail population consists of unsentenced individuals. This is not unique to Santa Clara, as across California more than sixty two percent of inmates in jail are either awaiting trial or have yet to be sentenced. These numbers are troubling considering the presumption of innocence that pretrial individuals are said to have. As the Supreme Court stated in Coffin v. United States, “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” So, why are so many, presumably innocent, people sitting in jail? The answer is the current bail system. About 500,000 thousand people in this country, many of whom are charged with petty misdemeanors, are forced to remain in county jails simply because they cannot afford bail. The time spent in jail awaiting trial has a detrimental impact on the individual. The Supreme Court of the United States has even recognized the impact of pretrial detention. In Barker v. Wingo, the Court acknowledged that, “[i]t often means loss of a job; it disrupts family life; and it enforces idleness…Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent.”
My name is Hunter Burnette and I am a second year law student at the Santa Clara University School of Law. I will be writing about the impact of excessive pretrial detention, specifically focusing on the personal, social, and economic effect that pretrial detention has on individuals and their families. During my time as an undergraduate student at Northern Arizona University, I specialized, in part, in corrections and social control and saw firsthand the severe and lasting effects of pretrial detention. With this blog I hope to effectuate awareness and change, not just on a case-by-case basis, but on an institutional level. The decision to detain a person who has not been convicted is a draconian one, and carries enormous consequences not only for the defendant, but also for the safety of the community.