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"The most positive trend has been courts realizing they've been using an outdated, unsafe, unfair, and expesive means of determining who should stay in jail and who should be relased," Burdeen says.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.