Pretrial “Justice” Is Anything But

Last week, Matthew Chalkley walked out of a Georgia jail, having been held there, without bond, for more than three years. A jury of his peers exonerated him in a two-day trial, saying the state had insufficient evidence to prove the charge of felony sexual assault. This young man spent 39 months in jail (four months longer than the average time served for the same crime) without ever being tried or convicted.

Lest we think his story exceptional, two other men were released from the same jail, the same week, after being held a cumulative four years without the state having to prove, or even offer evidence, of their guilt. 

The presumption of innocence – the right not to be punished until you are tried and convicted – is one of most critical innovations of the American ideal of due process. That singular ideal is under attack from an out-of-control criminalization system (we dare not say “justice”) where the full slate of constitutional protections (peaceful arrest, lawful searches, speedy trials, juries of your peers) is available only to those who can pay to ensure they’re enforced. 

The presumption of innocence must be bought – and not everyone can afford it. 

Three quarters of inmates held in US city and county jails – half a million people nationwide – have not been convicted or sentenced for a crime. They remain incarcerated because they are too poor to pay the cash bail set by a court. One-third have been locked up for more than a year without trial. Many more are being held, like Chalkley, without the option of bail. 

In principle, bail is like self-ransom: a significant sum is held by the court as insurance that the accused will present himself for trial. In practice, however, courts are routinely demanding money as a condition of exercising one’s Constitutional rights. 

Bail amounts vary wildly (from $500 for shoplifting or being drunk in public, up to $1 million for willful murder) but consistent survey data indicate most Americans would not be able to cover an expense of $1,000, and as a result, many presumed-innocent individuals are spending time in jail. 

The Sixth Amendment is on Life Support

Cash bail is only one of many end-runs around due process that are keeping the wheels slowly turning in a court system that would otherwise collapse under the weight of its own overreach. Not only is the presumption of innocence essentially dead, the question of guilt or innocence has become increasingly irrelevant. 

If you left your pocket Constitution in your other pants, the Sixth Amendment supposedly guarantees, among other crucial protections: the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you. 

Thanks to “pretrial detention” an individual will sit captive in a cell and wait to see if those supposedly inherent rights will be dispensed, at some point, by the same system that preemptively took his freedom. This already abominable condition was worsened by Covid-19 shutdowns of courtrooms, which further delayed hearing schedules.

Ninety-five percent of criminal convictions are reached with a plea, not a trial. When a defendant insists on going to trial, prosecutors seek sentences up to ten times longer (think 20 years instead of 2 years offered as a plea). This well known, Supreme Court-approved practice is known as a “trial penalty,” and is properly understood as a punishment for exercising constitutionally protected rights. 

Poor defendants are kept incarcerated (for at least days and often weeks before bail is set, if it is, and paid, if it can be) away from their support system and resources. Research shows just three days in jail causes enough disruption to cost people – especially those living paycheck to paycheck – their housing and their jobs. While they watch through the bars, their lives crumble. 

A court-appointed attorney, with 12 minutes to study a case, may recommend a guilty plea in good faith (“You can walk out of here with time served, or take your chances with a jury and get 10 years”) but may not explain the collateral consequences of a lifetime criminal record, including high probation costs, ineligibility for loans, housing assistance, occupational licensing, and more. The plea is often presented as “Take it or leave it” to defendants, who have no ability to question the legitimacy of the claims and often struggle with the legalese of the documents that will now decide their fates. Prosecutors are not required to present evidence (as they would be in a trial) nor discuss the strength of the case against the accused. 

Even promises of probation, which can sound like rescue, serve only as suspended prison sentences. The provisions of parole are so onerous, and costly, that a significant percentage of parolees end up in jail anyway. A late payment, a missed check-in, an unauthorized day trip, a failed drug test – it is then these “technical violations” (not new crimes) which result in incarceration. 

What is particularly troubling about cash bail is that it allows the relatively wealthy to opt out of the worst pretrial abuses. If the Senator’s son and the police chief’s nephew faced the same pretrial conditions, they would not be allowed to stand. 

The problem is not, as we sometimes hear it framed, that the wealthy are able to escape justice in the court system. The problem is that only those with means can afford to avail themselves of the full protections that the system purports to provide for all. 

The Threat to Public Safety

Perhaps these lost years are a necessary evil, some might argue. Maybe people who are arrested for rape, robbery, murder, and assault are such a threat to the rest of us they should be locked up just in case they’re guilty. Claims have been made that bail reforms in major cities create a “revolving door” of people freed while awaiting trial, who then commit additional crimes.

First, there is scant evidence for this. Releasing people pretrial does not negatively impact public safety, nor did more people abscond (fail to turn up for trial). Furthermore, release without bail (sometimes called “release on own recognizance” or a signature bond) carries the same penalties for reoffense as probation or parole, neither of which is thought to be fundamentally ineffective because it does not prevent all recidivism.

Second, this perspective that some innocent people must be punished so that criminals won’t go free is deeply perverse. We seem to have lost sight of Blackstone’s ratio, the laudable, foundational notion that it is better for ten guilty persons to escape punishment than for one innocent to be punished unjustly. If law enforcement and prosecutors are unable to try, convict, and appropriately sentence people who genuinely pose a threat to their communities, then their professional shortcomings should be examined — their already-abysmal adherence to due process is not to blame.

Third, the vast majority of people arrested are not even suspected of committing violence against another person. Fewer than 5 percent of arrests nationwide are tied to violent crimes. The incidence of violent crimes has plummeted 75 percent since 1990, though most Americans seem to believe otherwise. And a high number of arrests does not correlate to a high number of solved cases (what we typically think of as “justice”). The crime clearance rate, or rate of closed cases, was less than half for violent crimes in the US, and less than 20 percent for property crimes.

Police and courts do not do what we, as a population, ask them to do, but are locking up thousands of peaceful people “just in case.”

“Pretrial Justice” Criminalizes Poverty

There is a direct correlation between poverty and exposure to crime in the US. The poorer you are the more likely you are to be a perpetrator, a victim, or a witness to crime. That makes sense, in a way, as crime is sometimes an “option” for people whose options are limited. Less access to employment, quality schools, positive role models, and behavioral health services all contribute to making law-breaking “worth it” for some segments of our population, namely the poorest. If the best-paying job in your neighborhood is drug dealer, that establishes a certain set of incentives. If you come out of jail with a criminal record that makes it hard to find work, and a hefty penalty to pay to the state, the most reliable way to pay the fine (buy your freedom) is to sell some more drugs, and hope you don’t get caught this time.

Poverty also correlates with the most common reasons for arrest in the US The number one cause for arrest is traffic offenses, including driving on an expired or suspended license (failing to pay the state for your right to use your vehicle). Petty theft, drug possession, and public disorder round out the common causes of arrest.

Perniciously, stakeholders in the legal system benefit financially, both from arrests, and proportional to higher bails being set. In Atlanta, where I live, special “fees” are tacked onto every bail to benefit the Peace Officer Annuity Benefit (5 percent), the Police and Persecutors (sic – I swear, at the time of writing the AtlantaGA.gov site says “Persecutors”) Training Fund (10 percent), and the Indigent Defense Fund (10 percent). Another 15-20 percent is added with the vague tag “City Jail fee.” These sums – now a full 150 percent of bail set by a judge, are not typically refunded if the charges are dropped or the accused acquitted.  

Commercial bail bonds, which provide temporary, expensive relief in the same way that payday loans might, are purchased with 10-30 percent of the bail total – regardless of how charges are resolved. If charges are later dropped the bail may be refunded, but the premium, and legal fees, will not be. For $50,000 (the average bail in California) a family may be penalized $15,000 even for a wrongful arrest: the cost of a used car, or a year of college. 

Disturbingly, cash bail is routinely required for crimes that, even if the offender is convicted, would not carry jail time. This is an essential detail, because it means we are not jailing people for crimes, or even for suspected crimes. We are jailing them for their poverty at the time of arrest.  

Forced Institutionalization

Jails strip away humanity and rights deliberately. That is the purpose of incarceration: to remove freedoms because a court has required it. 

We rationalize it by telling ourselves, “They must deserve to be there.” But guilt or innocence has precious little to do with why people find themselves in America’s jails.

We’ve been made aware of, and subsequently numbed to, the horrors inside jails and prison. Documentaries, reality TV, blockbuster movies, and high-budget series show us violence, fights, assaults, solitary confinement, terrible food on trays, deprivation of medical care and basic services. Most of us can’t imagine being stripped of our clothes, doused in iodine, assigned to a cellblock of strangers with no idea whom to trust. Forced exposure to violence, corruption, drug trafficking, nonconsensual prostitution, gang activity, contagious diseases – how could this be anything but preemptive punishment? The assumed innocent is forced into a situation of incredible stress. Institutionalization also has serious mental health and public safety consequences. 

We note the isolation, frustration, and desperation imposed by forced quarantine, but fail to consider how living in jail changes a person. An innocent individual might live this way for years before being exonerated. And regardless of why he was in jail the first time, the longer he was held, the more likely he is to go back.

Three quarters of the people in America’s jails have not been convicted of a crime. 

That is punishment before conviction.

If Sixth Amendment protections were honored, it would be nearly impossible for the United States to have the highest incarceration rate in the world.

Due process rights are for everyone – not just those who can pay.

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