Criminal Justice

Too Many Americans Languish in Jail Waiting for Trials, but Reforms Are Coming

A new report gives the country a D for its pretrial justice system. But there are reasons to be optimistic.


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Nearly two thirds of the people sitting in America's jails have not actually been convicted of a crime.

We're talking about people who are awaiting their day in court to determine guilt or innocence. According to the Pretrial Justice Institute, that percentage has increased dramatically since 1990, when it was only 51 percent.

"The current state of pretrial justice is horrible," institute CEO Cherise Fanno Burdeen tells Reason. But Burdeen is nevertheless optimistic, because she's seeing concrete changes to the pretrial system that ease the unnecessary impact on those who get arrested, particularly those who struggle to afford the costs of bail.

To that end, the Pretrial Justice Institute has put out an inaugural edition of what Burdeen hopes will be an annual report documenting and grading states on their programs. "The State of Pretrial Justice in America" grades each state on how successfully it assesses who should remain behind bars and who should be released before trial on the basis of actual community risks, not simply on whether the defendants can afford bail or the severity of the criminal allegations.

The report evaluates three categories:

  • the pretrial detention rate for those charged with crimes,
  • the use of a pretrial assessment system to determine who can safely be released from jail prior to trial, and
  • the elimination of money bail.

The institute gives the country as a whole a D, and more than half the states received a D or an F. That's not good. But trends favor change. The report suggests that America is in its third wave of pretrial reform, driven by an increased understanding that money bail frequently leaves poor people behind bars while waiting for trial even when there's little risk they'll commit further crimes and when it's likely they'll show up in court.

"The most positive trend has been courts realizing they've been using an outdated, unsafe, unfair, and expesive means of determining who should stay in jail and who should be relased," Burdeen says. "The trend over the last decade has been away from money bail to a more comprehensive system."

This year saw what may be very pivotal reforms in pretrial detention systems in New Jersey, the only state to earn an A on the report card. In January, New Jersey finally implemented a plan—in the works for several years—that shifted away from a money bail system into a pretrial assessment system.

As a result, New Jersey saw a dramatic drop in the number of people languishing in jail awaiting trial: a 15 percent decline in just the first six months. During that same timeframe, crime also dropped statewide. Allowing more people out of jail before their trials did not produce an increase in crime.

In 2018, California will be a state to watch for pretrial system reform. A legislative effort to follow in New Jersey's footsteps stalled this year, but reformers have the ears of top government leaders. Lt. Gov. Gavin Newsom, Democratic frontrunner to succeed Gov. Jerry Brown, has declared his support for eliminating cash bail. California Chief Justice Tani G. Cantil-Sakauye headed a work group that just released a slate of recommendations to replace money bail with a pretrial assessment system.

Burdeen also has her eye on Ohio and Nebraska. Nebraska is currently phasing in a law intended to reduce the likelihood that people who cannot afford to pay fines for low-level crimes will end up in jail. The law allows judges to dismiss fines or assign community service instead.

Civil rights groups and those who get caught up in pretrial detentions are also turning to lawsuits to try to force changes, arguing that it's unconstitutional to keep people trapped in jail, sometimes for misdemeanors such as shoplifting or driving without a license, solely because they cannot afford the cost of bail bonds.

Nationally, there's a bipartisan push in the Senate to help facilitate states moving forward with reform. Sens. Kamala Harris (D-Calif.) and Rand Paul (R-Ky.) introduced a bill that would fund $10 million in grants to states to help facilitate the research and creation of assessment programs that would help reduce pretrial jail detentions.

Pretrial justice system reforms may not get as much attention as other efforts to scale back the intensity of criminal punishment, particularly in connection with America's historically punitive drug war. But jailing people who haven't even been convicted of a crime has a similar destabilizing impact on families, jobs, and income, and it makes life harder for poor people who get swept up for low-level offenses.

Download and read "The State of Pretrial Justice in America" here.

NEXT: Did Trump's Ex-Im Bank Nominee Flip-Flop or Is He Being a 'Trojan Horse'?

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  1. Perhaps the person can wear an ankle bracelet which transmits his location, so that if he goes somewhere he’s not supposed to, or violates a curfew, the cops will immediately know and be able to trace him?

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  2. a bill that would fund $10 million in grants to states to help facilitate the research and creation of assessment programs that would help reduce pretrial jail detentions

    “It seems to be working in New Jersey.”

    You’re welcome.

    Seriously… the only way these types can think of to reform something is to throw more money at it?

    1. It’s not really a lot of money once we’ve divided it among everyone who needs to wet his beak.

  3. The answer to this is not to eliminate bail. The problem is that we have too many laws, throw too many people in jail, and as a result have created a system where it is virtually impossible to give anyone stuck in it a fair and speedy trial. That is a huge problem. And eliminating bail just treats the symptoms of it and creates all kinds of ancillery harms. The sollution is to reduce the size of the system to a managable level so that people who are charged with a crime can get a fair and speedy day in court.

    1. We should do both of those things. The concept of bail doesn’t even make logical sense because the person who is rich actually has the means to flee justice unlike someone who is poor.

      1. This is true for any kind of monetary fine. Getting a speeding ticket is nothing to someone with means, but very often breaks people who are scrambling to keep their heads above water. This often spirals out of control, where they fail to pay the ticket, late fees are added — their registration and inspection stickers can’t be renewed, they get additional tickets for that, cars impounded, impound fees, etc.

        Yes, one problem is that too many people who can’t really afford cars own them, but the other problem is that we use monetary punishment which cannot possibly be applied equally under the law.

  4. Nice article. Very informative and very well written. Thanks.

  5. Don’t wanna be in jail like a thug, don’t get arrested like a thug.

    1. Shit happens when snowflake crybullies cry to the cops :

  6. As a result, New Jersey saw a dramatic drop in the number of people languishing in jail awaiting trial: a 15 percent decline in just the first six months. During that same timeframe, crime also dropped statewide. Allowing more people out of jail before their trials did not produce an increase in crime.

    I am willing to believe that doing away with cash bail is a good idea, but I a dubious that anyone has data showing crime dropped in NJ during this time. Not because I don’t think it happened, it’s just way to early to have those numbers. Usually the state crime stats come out in the spring of the following yea

    1. Even if crime did drop, correlation does not equal causation. Maybe crime dropped in spite of the elimination of bail? The answer to that question is neither certain nor obvious, despite Reason pretending otherwise.

      1. Completely agree too many laws and too many thrown in jail.
        WRT drop in crime in NJ, I think you do the author a disservice: The article notes the drop in crime and then states that crime rates did not go up in NJ as a result of these changes. That is a valid comment.

        1. No it is not valid. What is valid is to say the crime rates did not go up. It may be that they would have gone up thanks to this but didn’t because some other factor lowered them more than this raised them. The implication of the author’s statement is that the policy didn’t make crime worse than it would have otherwise been. And that is not at all apparent from the facts presented.

      2. You are absolutely correct, but by the same token, an increase in crime was also not shown. It’s difficult to disentangle causal relationships when you change only a single variable without a good model.

  7. So what does the pre trial system do? this is something I’ve noticed about articles at Reason claiming something is good without any real explanation as to why or how same when they claim someone is racist without any documentation. I like most people hear do not take anyones word on the veracity of any subject without documentation.

    there is a link to a site but at least an abridge paragraph of what it is would be helpful to see if i want to pursue the subject further.

    1. Because it comes from a Constitutional angle- a right to a fair and speedy trial, a presumption of innocence until proven otherwise, etc. Basically, the Sixth Amendment, which is just one of those pesky “Bill of Rights” that statist Republicrats seem to let get in the way of their political opportunism.

      1. Your assuming I’m against the right to a fair and speedy trial when all I asked was more info on the subject matter and for your info the bail system was to accommadate the fair and speedy part but like others over time it has become bloated. Your answer was a knee jerk reaction without thought into what I wrote and did not answer the question. think before writing next time.

  8. What a fucking joke — the idea that the Feds should pay states to save money by not jailing pre-trial people. $50-$100 a day to house prisoners, and they have tobe bribed to not lose money?

    All it shows is the true nature of most crime — it’s only illegal, not immoral, and its primary raison d’etre is disrespect for authority, display of power — control freakery by nannies.

  9. PJI answer is a District of Columbia failure that has been in place for over 10 years.
    Here are the results. You decide if it is working well:
    ? DC PSA released approximately 150,000 defendants at a taxpayer cost more than $550 million
    ? Over 25 million drug tests performed on individuals not yet convicted
    ? While most state jail populations have declined since 2008, DC has increased
    ? June 2017 DC jail report – 58% pretrial jail population – average of length of stay of about 6 months
    ? US crime declined by 21% since 2008, DC crime increased by 3%
    ? DC highest US crime rate per capita
    ? 89% of DC jail population is black
    ? Budget increased over 35% since 2007
    New Jersey? In 2017 NJ spent $130 million to release about 6,000 more defendants than in 2016 for an incremental cost of over $19,000 per defendant. And the 2017 report calls for a 150% increase in government workers at high salaries and benefits. New Jersey is not the answer.
    Here are sites with the facts: – June 2017 report – see report to governor 2017

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