Carceral pretrial approaches lack evidence of effectiveness—in fact, research identifies that commonplace strategies such as money bail, detention, and even mandatory drug testing hamper pretrial success. In addition, these strategies are racially discriminatory while also contributing to harmful collateral consequences for individuals and communities. As jurisdictions across the country are beginning to confront these findings and explore alternatives, the pretrial space offers a unique opportunity for abolitionist transformations.
About 75% of people detained in US jails—more than half a million people—are held there pretrial, before being found guilty for any crime. Pretrial detention has exploded in the last 2 decades, accounting for 95% of all jail population growth since 2000. Local communities spend more than $14 million per year detaining people who have not been convicted, and as much as 85% of people detained pretrial are in jail because they cannot afford to pay the bail set in their case. Research asserts that not only are these approaches collaterally detrimental—they also negatively impact their purported goals of protecting public safety and ensuring judicial engagement.
Pretrial detention and money bail discriminatorily impact people of color, people experiencing poverty, women, LGBTQ people, and people experiencing behavioral health challenges. As is reflected throughout the criminal legal system, people of color are severely overrepresented pretrial. While Black and Latinx people together comprise about 30% of the US population, they represent 50% of all pretrial detainees. Simply being Black increases a defendant’s likelihood of being detained pretrial by 25%. In addition, people in jail are drastically poorer than non-incarcerated counterparts: the median annual income for people held in jail is $15,109, which is nearly 50% less than their free peers. Women are rarely able to afford money bail—women detained pretrial had a median income of $11,071, which is scarcely more per year than the average bail amount set. In addition, women are more likely to plead guilty irrespective of actual guilt because detention impacts ability to care for dependents. LGBTQ people are also frequently detained due to money bail: approximately 75% of LGBTQ people held pretrial were there because they could not afford the bail set in their case. Finally, people with behavioral health challenges are not only disproportionately criminalized, but they also do not receive adequate support while behind bars. 1 in 5 people held in jail have serious mental illness, and only 11% of people with substance use disorders receive treatment while detained.
Carceral pretrial approaches come at a human cost. Even a weekend in jail can cause loss of employment, housing, public benefits, and custody of children; interruptions in schooling and provision of healthcare; and immigration consequences such as deportation.1See, for example, Vera Institute of Justice, “Justice Denied: The Harmful and Lasting Effects of Pretrial Detention,” April 2019, https://www.vera.org/downloads/publications/Justice-Denied-Evidence-Brief.pdf; Crime and Justice Institute, “Analyzing Bond Supervision Survey Data The Effects of Pretrial Detention on Self-Reported Outcomes,” June 2016, http://www.crj.org/assets/2017/07/13_bond_supervision_report_R3.pdf; Annie E. Casey Foundation, A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities,” April 2016, https://www.prisonlegalnews.org/media/publications/A%20Shared%20Sentence%20-%20The%20Devastating%20Toll%20of%20Parental%20Incarceration%20on%20Kids%2C%20AECF%2C%202016.pdf; Safety and Justice Challenge, “Decision Points: Disproportionate Pretrial Detention of Blacks and Latinos Drives Mass Incarceration,” November 2015, https://safetyandjusticechallenge.org/blog/decision-points-disproportionate-pretrial-detention-of-blacks-and-latinos-drives-mass-incarceration/; Pretrial Justice Institute, “Why We Need Pretrial Reform,” n.d., https://www.pretrial.org/get-involved/learn-more/why-we-need-pretrial-reform/; Columbia Law Review, “The Impact of Pretrial Detention on Immigration Proceedings: An Empirical Analysis,” June 2021, https://columbialawreview.org/content/the-impact-of-pretrial-detention-on-immigration-proceedings-an-empirical-analysis/ These approaches contribute to irreparable harms for community members: for example, after spending three days in jail for allegedly failing to use her turn signal, Sandra Bland was found dead in her cell. Pretrial detention can also last far longer with devastating consequences. Kalief Browder spent three years in pretrial detention—much of this time in solitary confinement—for allegedly stealing a backpack at age 16 because his family was unable to pay the $3,000 bond set in his case, and the trauma of this experience contributed to his death. These commonplace approaches contribute to significant individual- and community-level harms.
Current strategies, including pretrial detention, money bail, electronic detention, and substance testing, can also hamper community safety and judicial participation. When controlling for relevant factors, pretrial detention of only three days increases the likelihood of committing another crime by 40%, and this likelihood increases as the length of detention grows. People who cannot afford bail have harsher case dispositions—they are 3-4x more likely to receive a sentence of jail or prison, and their sentences are 2-3x longer. In addition, they are 25% more likely to plead guilty with no evidence that this is related to actual guilt. Electronic detention can double the likelihood of re-arrest. Mandatory drug testing significantly increases the likelihood of missing a court date and of being arrested. Rather than increasing access to justice and safety, punitive policies can create greater harms.
While research demonstrates that carceral approaches are not effective in promoting community safety, supportive strategies are evidence-based and respond directly to root causes. For example, the most commonly cited reasons for individuals missing a court date—which can result in pretrial detention—are lack of transportation, lack of childcare, and lack of and/or confusing information about their court date.2See, for example, APPR, “Court Date Notification Systems,” Oct. 2020, https://advancingpretrial.org/appr/appr-resources/pretrial-education-resources/; CCBF, “Punishment Is Not a ‘Service,’” Oct. 2017, https://chicagobond.org/wp-content/uploads/2018/10/pretrialreport.pdf; Alicia Virani et al., “Creating a Needs-Based Pre-Trial Release System,” Fall 2019, https://law.ucla.edu/sites/default/files/PDFs/Academics/CJP%20Pretrial%20Proposal%20-%202020.pdf, County of Santa Clara Bail and Release Work Group, “Final Consensus Report on Optimal Pretrial Justice,” Aug. 2016, https://countyexec.sccgov.org/sites/g/files/exjcpb621/files/final-consensus-report-on-optimal-pretrial-justice.pdf; ACLU, “A Pound of Flesh: The Criminalization of Private Debt,” 2018, https://perma.cc/MZJ3-KN4P; Texas Appleseed, “How Bail Reform can lead to Improved Court Appearance Rates,” n.d., https://www.texasappleseed.org/sites/default/files/Bail%20Reform%20and%20Court%20Appearance%20Rates.pdf; CCBF, “Punishment Is Not a ‘Service,’” Oct. 2017, https://chicagobond.org/wp-content/uploads/2018/10/pretrialreport.pdf; DOJ, “Reducing Courts’ Failure to Appear Rate: A Procedural Justice Approach,” May 2011, https://www.ojp.gov/pdffiles1/nij/grants/234370.pdf Court date reminders are considered “among the most well-researched and effective pretrial innovations,” and can reduce pretrial failure to appear by as much as 43%. Community organizations are helping facilitate greater outcomes using these evidence-based strategies—for example, The Bail Project in Indianapolis found that 70% of people charged pretrial lack transportation and 75% have children and/or are currently pregnant. After providing free transportation and childcare, court appearance rates skyrocketed to 90%. Shifting the strategy from punishment and discrimination to support thus contributes to greater safety and judicial participation.
As per Mariame Kaba, the work of abolition involves “reduc[ing] the power of an oppressive system while illuminating the system’s inability to solve the crises it creates.” Research makes clear that carceral pretrial strategies fail to solve the crises of lack of safety and healing, and in fact can create such challenges. With this illuminated foundation, Ruthie Wilson Gilmore defines abolition as a “positive project,” meaning “not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack.” Pretrial transformations exist precisely at this nexus: decarcerating; supporting individuals in contact with the criminal legal system rather than penalizing people for experiencing marginalization; and diverting funds away from carceral responses to community resources. And this is not simply an imagined possibility—this is an enacted reality in jurisdictions across the country.
Shifting away from harmful approaches that lack evidence of efficacy, jurisdictions are commencing decarcerative, supportive, and evidence-based strategies. For example, in Harris County, Texas, nearly all allegations of misdemeanors automatically result in release with no-cash bonds. After this policy change, 99% of people accused of misdemeanors were released pretrial, and the prior racial disparities in pretrial detention were eliminated. Less than 1% of people released were re-arrested after this change. In Washington, D.C., judges cannot set a bail amount that results in an individual’s detention, and Pretrial Services Agencies connect people accused of crimes with employment, housing, and social services. D.C. saw nearly equivalent rates of decarceration and declines in rearrest. In New York City, NY, the court system began providing court date reminders, a low-cost and scalable supportive service, which resulted in a more than 26% decrease in failures to appear. Abolition is thus not solely imaginable; it is achievable, and it is successful.
Given the harms of carceral approaches pretrial, and the strong research in favor of decarceration and supportive services, pretrial transformation is thus just one important step toward the positive project of “not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack.”