The Square One Project, the Radical Notion of the Presumption of Innocence, 2020
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THE SOUARE ONE PROJECT REIMAGINE JUSTICE EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY MAY 2020 Tracey Meares, Justice Collaboratory, Yale University Arthur Rizer, R Street Institute THE “RADICAL” NOTION OF THE PRESUMPTION OF INNOCENCE The Square One Project aims to incubate new thinking on our response to crime, promote more effective strategies, and contribute to a new narrative of justice in America. Learn more about the Square One Project at squareonejustice.org The Executive Session was created with support from the John D. and Catherine T. MacArthur Foundation as part of the Safety and Justice Challenge, which seeks to reduce over-incarceration by changing the way America thinks about and uses jails. ~ SAFETY+JUSTICE I.EL CHALLENGE Supported by the John D. and Catherine T. MacArthur Foundation 04 08 14 INTRODUCTION THE CURRENT STATE OF PRETRIAL DETENTION WHY DOES THE PRESUMPTION OF INNOCENCE MATTER? 18 24 29 THE IMPACT OF PRETRIAL DETENTION WHEN IS PRETRIAL DETENTION APPROPRIATE? 33 35 WHERE DO WE GO FROM HERE? ALTERNATIVES TO AND SAFEGUARDS AROUND PRETRIAL DETENTION CONCLUSION ENDNOTES REFERENCES 41 41 42 ACKNOWLEDGEMENTS AUTHOR NOTE MEMBERS OF THE EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY 37 ■ 04 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE “It was the smell of [] death, it was the death of a person’s hope, it was the death of a person’s ability to live the American dream.” That is how Dr. Nneka Jones Tapia described the Cook County Jail where she served as the institution’s warden (from May 2015 to March 2018). This is where we must begin. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 05 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE Any discussion of pretrial detention must acknowledge that we subject citizens— presumed innocent of the crimes with which they are charged—to something that resembles death. American history is replete with instances of this country’s failure to ensure that the basic founding principle of the presumption of innocence was applied, and, when applied, done so equitably. We failed to afford this principle to enslaved people and, after the Civil War, to those who were emancipated. We failed after Reconstruction and well into the 20th century, when thousands of black Americans, mostly in the Jim Crow South, were lynched without the required process that the state must prove a crime had been committed through a trial resulting in a jury verdict of guilt (Equal Justice Initiative 2017). And today, we continue to ignore this principle when we unnecessarily hold people who are presumed innocent—disproportionately people of color, and overwhelmingly people without means—in pretrial detention, causing great harm and loss of liberty. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY Let’s not forget that Kalief Browder spent three years of his life in Rikers, held on probable cause that he had stolen a backpack containing money, a credit card, and an iPod that the police did not find on him. Two of those years he spent in solitary confinement. And after he was released, as is well-known, Browder committed suicide. Today, during the current COVID-19 pandemic, jurisdictions are extending the grace period between a defendant’s arrest and her appearance before a judge to determine if she will be released pretrial, and, if so, under what conditions. In extending this timeline, the justice system is aborting the right to a quick bail hearing, and thus a speedy trial (Friedersdorf 2020). In the face of contemporary practices across the United States, it is difficult not to conclude that commitment to the presumption of innocence is a radical idea. Given the evidence of the enduring inability of state bureaucracies to respect the presumption, we think it is necessary to support this bedrock principle with another presumption: a presumption of liberty. ■ 06 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE In our view, commitment to the presumption of innocence prior to criminal adjudication requires that a presumption of liberty be ingrained in our system procedurally because the opposite of the presumption of liberty— pretrial detention—both feels and looks like punishment to those who are detained. It is clear, moreover, that detention can greatly hinder an individual’s defense. In order to ensure that pretrial detention is exceedingly rare and actually limited to instances in which an individual presents a risk of fleeing and failing to appear at court, we argue that pretrial detention should occur only after a finding based on clear and convincing evidence that an individual is unlikely to appear before a court for adjudication of the offense with which she is charged. Ensuring that a defendant appears before a tribunal to have their guilt adjudicated in court is the only rationale for pretrial detention grounded in legal jurisprudence. We believe the state may argue for pretrial detention only when the state can present articulated evidence to an adjudicator that EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY the defendant poses a specific risk to the adjudication process, such as threatening harm to a witness or a victim, juror tampering, or a likelihood of flight from the jurisdiction. To be clear, threatening harm to a witness is different from arguments about general threats to the community. In our view the presumption of innocence does not allow room for arguments regarding the potential danger an individual may present to the community, in general terms, as the sole justification for pretrial detention as part of the trial process. Detention of a defendant for “dangerousness” is not rooted in law nor even in public safety if that assessment is based merely upon probable cause to believe that an individual committed a particular criminal offense, which is the basic finding of a court to hold a defendant for trial. We believe, given our founding principles and advancements in technology, that the state is required to utilize other, less intrusive mechanisms apart from detention to ensure the defendant’s presence at adjudication, such as passport surrender, asset freezing, ■ 07 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE electronic monitoring, case management (supervision) related to behavioral health, and in some cases, even high monetary bail. To explain our rationale, we will first discuss the current state of pretrial detention and the importance of the presumption of innocence. We will then turn to the effect of pretrial detention on Americans today and explain why it is critical to instill the presumption of liberty as a way to protect the presumption of innocence. Next, we will address the question of when pretrial detention is appropriate and when it is not, before discussing alternatives and concluding with a short agenda for change. IN THE FACE OF CONTEMPORARY PRACTICES ACROSS THE UNITED STATES, IT IS DIFFICULT NOT TO CONCLUDE THAT COMMITMENT TO THE PRESUMPTION OF INNOCENCE IS A RADICAL IDEA. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 08 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE THE CURRENT STATE OF PRETRIAL DETENTION EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 09 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE The scale of pretrial detention is staggering and should shock the conscience of all Americans. Of the approximately 612,000 individuals that are currently being held in county jails, the vast majority, about 460,000, are awaiting some type of adjudication and thus are presumed innocent (Sawyer and Wagner 2019). More concerning is that those who are locked charges as opposed to felony charges (FBI up before trial often do not represent the National Press Office 2019). While national jail most dangerous individuals or the highest data from a decade ago suggests that roughly flight risks—the two rationales often four in ten felony defendants in the largest articulated for pretrial detention—but are urban counties are detained pretrial until simply our poorest citizens (Neal 2012:13; their case is disposed, there are no national Bradford 2012). In addition, a huge number data that would help us to better understand of those detained for some period prior to pretrial detention rates for people charged adjudication face misdemeanor charges. with misdemeanors because the Bureau of While it’s true that the line between Justice Statistics does not collect those misdemeanor and felony can vary incredibly statistics (Reaves 2013:15; Heaton, Mayson, across jurisdictions—a domestic violence and Stevenson 2017:732).1 incident, for example, may be categorized as a misdemeanor but yet might result in a period Without good, recent data on the percentage of detention based on threat to the victim— of individuals detained pretrial for misdemeanors are generally less serious a misdemeanor or felony charge, we must and violent offenses than felonies. And FBI resort to localized estimates of the rate and data on arrests show that roughly 80 percent depth of this serious incursion on individual of the approximately 10.3 million arrests liberty. A recent article by economists in the country each year are for misdemeanor Heaton, Mayson, and Stevenson found that EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 10 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE □ BY IMPOSING INCARCERATION BEFORE JUDICIAL DETERMINATIONS OF GUILT SOMEWHAT INDISCRIMINATELY, AS WE CURRENTLY DO, WE ERODE BASIC LIBERTIES AND CHEAPEN THE PUBLIC PERCEPTION OF JAIL CELLS AS A FORM OF PUNISHMENT. approximately 53 percent of those charged of pretrial detention than those charged with misdemeanors in Harris County, Texas, with a felony. A study of the Miami-Dade the Houston area, were detained pretrial court system reveals that misdemeanor for more than a week during the period defendants were detained an average of six studied (2017:733). Heaton and colleagues days compared to felony defendants, who describe this rate as slightly higher than were held an average of 43 days (Peterson misdemeanor pretrial detention rates found 2019). The longer relative lengths of stay in other cities—their calculations suggest among felony defendants can then tip the that around 35 percent of misdemeanor scale in analyses focused on determining defendants are detained pretrial for the proportion of jailed misdemeanor and more than a week in New York City and felony defendants on any given day and make 25 percent of misdemeanor defendants it falsely appear as if more felony defendants are detained for more than three days are impacted by pretrial detention. Moreover, in Philadelphia (Heaton et al. 2017:732). analyses focused on charge-based detention Given that misdemeanors are much more differences likely conflate the utility of using numerous than felonies, and given that one’s charge to predict overall risk. To truly we are talking about misdemeanants measure the impact of pretrial detention, it arrested in metropolitan areas comprising may be more helpful to look at the absolute populations of over 4 million, 8 million, and number of bookings made over a year rather 1.5 million people, respectively, 53 percent than the percentage of individuals held or even 35 or 25 percent are high numbers pretrial on any given day. In any case, it in absolute terms of detained people likely should be clear from even this short review to be considered a very low public safety risk, of existing evidence that the problem of to the extent that one’s charge is an accurate pretrial detention is a big one, affecting proxy for one’s risk of reoffending. hundreds of thousands of people across the country. It is not site-specific or isolated. But focusing solely on these aspects of the data can obscure the sheer mass Given the current reality of pretrial detention, of individuals entering and exiting our jails we deliberately use irony in describing the prior to any finding of guilt. Misdemeanants, presumption of innocence as “radical.” Every after all, generally have shorter lengths American child learns that the presumption EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 11 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE of innocence is the bedrock principle on (1895), when the U.S. Supreme Court which our system of law is supposed to acknowledged that the presumption of rest. Common law has long recognized this innocence for people accused of crimes is principle, with the 800-year-old Magna “undoubted law, axiomatic and elementary, Carta declaring that the sovereign could not and its enforcement lies in the foundation imprison a citizen “or in any other way ruin … of administration of our criminal law” except by the lawful judgment of his peers or (Coffin v. United States, 1895). It is hard to by the law of the land ” (British Library N.d.). find a criminal justice concept with deeper We can find evidence for this principle in law roots or more solid jurisprudential footing. hundreds of years before the Magna Carta. We can trace back its lineage 1,500 years In contrast, the broad use of detention for to the Roman Corpus Juris Civilis, enacted by safety’s sake, an exception without clear Emperor Justinian (Gebelhoff 2016). Even the footing in traditional legal jurisprudence, eye-for-an-eye Code of Hammurabi, older has evolved as a new principle for bail still than Roman jurisprudence by 2,200 decisions over the past few decades. In 1970, years and maybe the oldest written law, the District of Columbia Court Reform and included this principle by providing the death Criminal Procedure Act established the first penalty as punishment for those who accuse legal basis for detaining an individual due to another of a capital offense before the elders the risk they posed to the community (United without proof (Mandal 2019). States Congress 1970).2 A little over a decade later, this became the national standard For generations, the presumption of for federal courts under the Bail Reform innocence has been touted in the United Act of 1984 (United States Congress 1984). States as essentially sacrosanct, with its After being challenged in court, the U.S. supporters often citing our Founding Father Supreme Court upheld the notion of pretrial, and second President, John Adams: “It’s preventive detainment in U.S. v. Salerno. of more importance to the community, According to the Court, preventive that innocence be protected, than it is, that detention did not have the purpose of guilt be punished” (Adams 1770). Although punishment when written into the Bail the presumption is not located in the Reform Act by legislators, but rather could Constitution’s text, it nonetheless plays be considered the regulation of dangerous a major role in American legal jurisprudence. individuals. In this way, the government The presumption was primarily an informal is able to act on behalf of the community’s assumption at the beginning of American interest even if it conflicts with individual legal history, but the principle gained liberties (United States v. Salerno, 1987). greater weight in Coffin v. United States In practice, the federal statutes since the EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 12 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE 1990s have mainly had a “presumption of in their constitutions, the presumption detention” that the defendant is required to of release is dictated by statute (National overcome—a burden that is akin to having Conference of State Legislatures 2013).3 a trial at which the presumption is guilt These constitutional provisions or statutes and a person must prove their innocence. generally follow what is laid out in Article I, Not surprisingly, today the federal pretrial Section 8 of the Connecticut Constitution: detention rate is around 75 percent; in places “In all criminal prosecutions, the accused like Hernando County, Florida, the pretrial shall have a right…to be released on bail detention rate has reached as much as upon sufficient security, except in capital 81 percent (Rowland 2018:13; Vera Institute offenses, where the proof is evident or the of Justice N.d.). presumption great…” (CT Const. art. 1 § 8). In most states, though, the presumption This approach has generated a dangerous of pretrial release is ignored when capital precedent. As posed by Michael Louis offenses are charged, and some states Corrado (1996): “What of any violent specify other charges, including murder and offender who has been convicted several treason (Indiana), offenses punishable by life times? Does dangerousness alone give in prison (Hawaii), and violent offenses and the state the right to regulate the freedom various drug-related offenses (Louisiana) of those individuals?” (Corrado 1996:785). (National Conference of State Legislatures A government that is able to detain its 2013). We see a similar infringement upon the citizens for an act it has not yet proved presumption of innocence when individuals beyond a reasonable doubt to have occurred are charged with a supervisory violation. is a capricious government vulnerable to the Indeed, individuals on probation or parole whims of policymakers’ and judicial actors’ can fare even worse in the court system. fears and beliefs about what connotes Often found guilty of technical violations a threat of danger to the community. due to a simple statement of the probation or parole officer, they too suffer detention Looking to the states, it appears the spells, and if their violation is a criminal presumption of innocence has not fared charge, may be automatically detained better, despite state statutes still having, pretrial. In many states, such as New York, for the most part, presumptions of pretrial a criminal charge is not even needed for release. Many state constitutions— automatic and mandated pretrial detention, 40 of them—include a presumption in favor as an additional arrest, not a guilty verdict, of releasing all but a few, specified types violates the terms of supervision. In other of defendants pretrial. Further, in eight words, if you are arrested while supervised of the ten that don’t have such a provision but your charges are immediately dropped, EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 13 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE you will still face a stay in detention prior to of innocence supported by a presumption adjudication before a judge to decide if you of pretrial release, and those who lose will be incarcerated for an additional arrest— their liberty do so after a hearing at which an arrest for a criminal act that the state has the burden of proof was put to the state to already determined you didn’t commit. show there were no risk-mitigation options (Ibid 8). Data from October 3, 2018 suggests Beyond the statutory and constitutional New Jersey lowered their pretrial detention standards, state pretrial detention practices population by thousands of individuals vary widely—in terms of whether to require compared to that same day six years prior, secured bonds, unsecured bonds, or neither yet they have not seen a substantial increase for different charged offenses or risk in pretrial crime or failure to appear rates profiles. The variants continue with regards (Ibid 45). But variations continue across the to bail schedules and caps, the use of risk Republic.4 And, despite strong language in assessment tools, an ability-to-pay inquiry, state constitutions and statutes, we know and conditions placed on those released from the sheer number of individuals that are pretrial. For example, in Connecticut, police detained pretrial that states do not regularly have wide discretion—and no statewide follow the ideals set forth in their own laws. guidelines—to release on recognizance or require secured or unsecured bond amounts We must work to change this. By imposing (Connecticut Sentencing Commission incarceration before judicial determinations 2017:12). In Kentucky, on the other hand, of guilt somewhat indiscriminately, as we it’s illegal to profit off bail—so there are no currently do, we erode basic liberties and private bail bond corporations (Santo 2015). cheapen the public perception of jail cells New Jersey made great strides toward as a form of punishment. When both the sweeping reform in 2017 and moved to innocent and guilty alike are held behind bars, a system that re-centered the presumption jails also lose their power to even attempt to of innocence by expanding the use of effectively rehabilitate sentenced individuals summons, thus avoiding the use of any jail in their care (assuming one believes that is time for about 70 percent of defendants, a relevant corrections goal) due to a larger only booking around 30 percent of people strain on jail resources and can fail to deter and then using a preventive detention individuals in the community from committing hearing for those whose charges are fit crime. In that sense, reform of pretrial criteria for detention (roughly 16 percent of detention could also serve a larger educative defendants in 2018) (Grant 2019:18, 37). The function by reminding people that any result of New Jersey’s reforms is that over punishment should be done with deliberation 90 percent of people have their presumption and a distinct policy goal in mind. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 14 RACIAL JUSTICE IN CRIMINAL JUSTICE PRACTICE WHY DOES THE PRESUMPTION OF INNOCENCE MATTER? EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 15 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE We have already noted the historical grounding of the presumption of innocence, but pointing to history is not enough to explain why it is important. In criminal law, Blackstone’s ratio presumes punishment are due to a deep, almost moral that there is a greater value to protecting revulsion to the alleged crime or a perceived one innocent man and letting multiple threat to public safety. Again, constitutional guilty people go free rather than harming processes of adjudication, elucidated by an innocent (Volokh 1997:175; Adams 1770). the Supreme Court, are designed to guard against the too-prevalent consequences of The presumption of innocence can be viewed this concern. Indeed, as Michael Klarman has as the practical outgrowth of this sentiment. noted, “trials” by lynch mob of black people in In both the context of Blackstone’s ratio the South motivated the very birth of modern and the presumption of innocence, the constitutional criminal procedure in the interpreted purpose of the formal legal 1920s through the 1930s, the foundation of process is to minimize undeserved which was the guarantee of the presumption suffering while attempting to hold the guilty of innocence by ensuring adjudication under accountable. Inherent in these maxims rule of law (Klarman 2000:49). is an acknowledgement that by protecting the liberty of the innocent, society may Some features of that jurisprudence include give up some certainty of safety prior to jury instructions on the presumption of an adjudication and determination of guilt. innocence, which are supposed to remind the jury that indictment is not equivalent Additionally, the presumption of innocence to evidence of guilt and temper jurors’ serves to protect against justice by “mob propensity for prejudgment of an individual rule” and instill respect for due process. (Fox 1979:257). According to legal scholar While professing respect for the innocent, George Fletcher, “[T]he ordinary citizen society is also quick to judge individuals may well draw significant additional guilty in the public sphere—further guidance” from this reminder (Ibid 266). underlining the importance of legal The state’s duty to prove to a judge or jury protections and due process. Often, these that the defendant has committed a charged quick assumptions of guilt and support for offense “beyond a reasonable doubt” EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 16 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE offers additional procedural protection effect, it might well be used to invalidate to the presumption of innocence. Indeed, long standing pretrial practices, such as the presumption of innocence and “beyond bail and pretrial detention” (Ibid 261). In a reasonable doubt” standards work together many states, individuals may have their to correctly remove the burden of proof bail set by a lay magistrate with minimal from the defendant and place it on the state, training and education and without a solid represented by prosecutors. In all cases, legal background (Trautman and Felton presuming guilt violates individual liberties 2019). Incredibly, bail hearings in which and puts individuals at risk of falling victim a person’s liberty is at stake may occur over to government abuse. Other aspects of a video conference call and can last several constitutional criminal procedure guarantee minutes or less than a minute (Stevenson individuals a right to due process, but 2017:4; Heaton et al. 2017; Rahman and Mai presuming guilt pretrial obviously interferes 2017).5 Defendants may not have counsel with these rights. present to represent their concerns and the decision to detain, to assess cash bail, Additionally, as a functional matter, or to release—a decision with far-reaching presuming guilt rather than innocence consequences for a defendant’s life and (as required) exacerbates the power presumption of innocence—is made with disparity between the individual and only a passing thought to many involved the state. If a person is presumed guilty, (Stevenson 2017:26; Heaton et al. 2017:11; the burden of proof of innocence effectively Rahman and Mai 2017). Current failures is placed on the less-resourced individual to extend the presumption of innocence rather than the state. The presumption to all parts of the legal process—including of innocence thereby stands not only determinations of bail and pretrial as a cornerstone principle of American detention—directly threaten to undermine jurisprudence but as one of the foremost core American values of justice. protectors of innocence, equality, and liberty under the law. Newly prominent risk assessment tools also potentially impact the presumption. We have described processes indicating Approximately a quarter of the U.S. that the presumption of innocence is population lives in a jurisdiction utilizing accepted as a part of trial procedure, but a validated pretrial risk assessment tool it is clear that the principle has yet to be (Pretrial Justice Institute 2017:13). These fully embraced at all points in the legal risk assessment tools were developed to process—especially prior to trial. One scholar help courts follow state statutes requiring notes “if the presumption of innocence were them to consider a host of factors beyond a true presumption with actual evidentiary the charge in making pretrial detention EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 17 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE □ IF A PERSON IS PRESUMED GUILTY, THE BURDEN OF PROOF OF INNOCENCE EFFECTIVELY IS PLACED ON THE LESS-RESOURCED INDIVIDUAL RATHER THAN THE STATE. THE PRESUMPTION OF INNOCENCE THEREBY STANDS NOT ONLY AS A CORNERSTONE PRINCIPLE OF AMERICAN JURISPRUDENCE BUT AS ONE OF THE FOREMOST PROTECTORS OF INNOCENCE, EQUALITY, AND LIBERTY UNDER THE LAW. decisions.6 They encourage judges to make pretrial detention, in practice, equates decisions about bail conditions based on to—on people who have not been convicted the tool’s prediction of someone’s likelihood and are presumed innocent, we must to make scheduled court appointments have a good reason grounded in legal without a new arrest. In many places, this jurisprudence and practical realities. judgement about whether a defendant is Yet today, we are often imposing the ultimate “high risk” results in courts holding people sanction—incarceration—in the absence of in jail in advance of an adjudication of adequate process or proof. For this reason, a pending charge, typically by setting a high we ought to have a presumption of liberty secured money bond. Estimates compiled in which we use lesser sanctions to ensure from a 2009 survey conducted by the Pretrial appearance at court or to dissuade any harm Justice Institute suggests that the vast to the court process or witnesses. majority of pretrial service agencies (9 out of 10 surveyed) rely on some assessment of risk to inform pretrial decision-making, although a 2015 report found that statewide risk assessment tools are still relatively rare (Pretrial Justice Institute 2009:35–36; Pretrial Justice Institute 2015:2–4). But while these tools may help inform judicial decisions to detain individuals, they don’t rule out detention’s impact on the presumption of innocence nor the weight of pretrial detention. When we impose punishment—and this is what EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 18 RACIAL JUSTICE IN CRIMINAL JUSTICE PRACTICE THE IMPACT OF PRETRIAL DETENTION EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 19 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE The evidence demonstrates that pretrial detention is one of the clearest examples of a violation of the presumption of innocence. Individuals are held behind bars pretrial (often in the same place they will be incarcerated if they are found guilty) because of a cursory assessment of their likely future behavior. Recall, importantly, that they have been have procedures to address these limited brought into that assessment process circumstances in which a person has been based only on a minimal amount of evidence, perceived to be dangerous to the community nothing more than probable cause to believe or themselves without being charged with they have committed a crime. a crime that provide individuals with greater process than a typical bail hearing, which While concerns about flight risk are we will discuss below. For now, we note that grounded in the court’s concern for due it is the simple fact of having been arrested process and the right to a speedy trial, that allows a court to reach into a person’s pretrial detention on account of perceived life and restrict constitutionally protected danger to the community at large is liberties in this very serious way. To us, the orthogonal to the presumption of innocence. probable cause finding to support an arrest It goes almost without saying that one is insufficient to support the kinds of liberty can be “dangerous” and not involved in the deprivations we describe above, and short, criminal justice system at all. There may assembly-line bail hearings do little to cure be other people in the community that the inadequacy of the initial findings. present a risk of “danger” just as high (or low) as the average detainee, but the courts We want to emphasize that the issue of clearly have no jurisdiction to grab those pretrial detention extends beyond innocent people off the street and assess them for people being temporarily locked away. potential danger (Mayson 2018). In fact, we There are additional costs to this practice. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 20 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE We know that pretrial detention, along from one’s family and a loss of income or with denying liberty, severely impedes housing—a ripple effect of punishment a defendant in defending her case (Baker for both a defendant and their family. This v. Wingo,1972).7 Practically speaking, anguish may also manifest in higher levels a jailed defendant has a limited ability of anxiety and depression as defendants to communicate with her attorneys or to behind bars are held in limbo while awaiting assist them with her case. Many defendants their trial with little certainty as to the are impoverished and, when detained, timeline and outcome—something a plea may lose their job, further increasing deal can short-circuit (Peterson 2019). This the likelihood that they will be forced to confinement places extraordinary pressure use under-resourced, court-appointed on such people to accept plea bargains, attorneys, many of whom are juggling regardless of their actual guilt (Bibas a myriad of other cases. And during times 2004:2493; Bowers 2008:1132–1139). This like these, being held pretrial may also pressure is especially salient for alleged present a clear threat to one’s life: social misdemeanants who are less likely to face distancing is impossible behind bars, and punishment behind bars after adjudication prisons and jails are now becoming centers of their offenses because they are more of the COVID-19 pandemic (Al-Hlou, Bracken, likely to receive credit for time served and Davis, and Rhyne 2020). so are less likely to receive an additional 8 sentence of incarceration post adjudication Even if an individual who is detained than those charged with felonies (Peterson is ultimately found not guilty, the fact 2019: supra note 23). For these individuals, that they were held pretrial may still this comparison makes the relative cost interfere with that person’s reputation and of detention and going to trial even greater relationships within the community. In an and thus a plea deal and quick resolution attempt to aid government transparency, to their cases becomes all the more booking photos and identifying information attractive. It should therefore be of little may be made publicly available and have surprise that study after study has shown the collateral consequence of inflicting that pretrial detention often increases an permanent harm to an individual’s image. individual’s chance of conviction—in part, Defendants held before trial are also due to a greater number of plea deals, many susceptible to pressure to accept plea of which are likely wrongful convictions bargains, as they are desperate to be (Dobbie, Goldin, and Yang 2018; Gupta, released (Bowers 2008). Along with the Hansman, and Frenchman 2016). loss of liberty, detention often brings the mental anguish of being separated EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 21 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE As if the loss of liberty that impairs their suitability for probation programs a defendant’s ability to defend themself instead of incarceration—something is not enough, those who are detained that is categorically impossible to show pretrial, especially for felony offenses, for those locked up in pretrial detention seem to generally have significantly harsher (Bibas 2004:2493). On the flip side, those sentences when their cases ultimately detained may face additional penalties are adjudicated than similarly situated for misbehavior that occurs during their individuals who were free while their cases detention, even if it is connected to moved forward (Lowenkamp, VanNostrand, understandable circumstances resulting and Holsinger 2013a:14).9 The main reason for from their detention. For example, an this disparity is predictable: the prosecution individual struggling with mental health may wields additional leverage—in this case, be detained and, upon being disconnected the power to offer a plea deal that allows from treatment and prescribed medication, them to exit pretrial detention or delay act up, incurring disciplinary infractions their trial to prolong their detainment— or incidents that can then be referenced over those who are in pretrial detention. during a trial or disposition. Put simply, the But it also goes deeper: those who are free presumption of liberty can be both a vehicle can “prove” their trustworthiness by not and argument for a strong defense, while committing any more crimes and ensuring pretrial detention functions as an effective they comply with all of their pretrial release presumption of guilt. conditions. Thus, those released can show □ A PRESUMPTION OF LIBERTY … CALLS THE SYSTEM TO A HIGHER STANDARD—ONE IN WHICH SYSTEM ACTORS BEAR THE BURDEN OF PURSUING ALL OTHER ALTERNATIVES TO MITIGATE RISK OF FLIGHT OR DANGER TO THE TRIAL RATHER THAN RELYING ON PRETRIAL DETENTION. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 22 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE Finally, for some, pretrial detention is a more decision to detain would only be made severe punishment than what they would or in circumstances in which the benefit of could incur if they were found guilty—millions detention is significantly greater than the of individuals who are found guilty of crime harm to personal liberty and livelihood. go on to be supervised in the community After all, according to Supreme Court (Kaeble 2018).10 In a study analyzing over Chief Justice Rehnquist, “In our society 165,000 cases from 2012 to 2015 in Miami liberty is the norm, and detention prior to Dade County, sociologist and legal scholar trial or without trial is the carefully limited Nick Petersen found about 81 percent of exception” (United States v. Salerno, 1987). misdemeanor defendants were predicted Additionally, a recent benefit-cost analysis to be given credit for time served as their of pretrial detention by economist Michael sentence—meaning no additional jail time— Wilson suggests that the costs of pretrial as were 37 percent of felony defendants detention may outweigh the benefits (Peterson 2019). And felony defendants for all but the most truly high, high risk were even more likely to be sentenced individuals (2014). Because our system to probation than those charged with relies on cursory assessments of flight risk misdemeanors (Ibid). and dangerousness based primarily upon a probable cause finding, our current system For all of these reasons, the only way to fails to weigh these costs, imposing a huge truly uphold one of our most important first loss in economic welfare on our society. Bail principles—the presumption of innocence— and detention decisions may be made over is to create and respect a presumption a video call and take a series of minutes. of liberty for those accused of crimes. Magistrates often serve as judicial officials A presumption of liberty does not mean and set bail and, in some cases, may not that every man or woman goes free on his have law degrees. Monetary bail amounts or her own recognizance, but rather calls are often assessed too high—out of reach the system to a higher standard—one in of those most impoverished. As a result, which system actors bear the burden of many individuals who pose no great risk of pursuing all other alternatives to mitigate flight are detained pretrial in American jails risk of flight or danger to the trial rather than across the nation. For example, in a recent relying on pretrial detention. study, more than half of individuals accused of misdemeanors from 2008 to 2013 in Given pretrial detention’s incredibly large Harris County, Texas, were detained pretrial; impact on individuals, families, livelihoods, those detained had an average bail amount and justice, one would think that the of $2,786 (Heaton et al. 2017:13). In contrast, EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 23 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE those who pose similar risk but have greater This means it is all the more important that financial means may escape the same loss our decisions to use detention are limited of liberty. to certain parameters and are made with purpose. In the next two sections, we will In sum, the use of pretrial detention discuss the history of punishment and the comes with ill-effects for defendants, parameters in which detention is or is not the principle of justice, and greater public appropriate and its alternatives in the safety. As noted by the U.S. Supreme Court pretrial setting. in Stack v. Boyle (1951), This traditional right to freedom [or right to bail] before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning (Stack v. Boyle, 1951). EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 24 RACIAL JUSTICE IN CRIMINAL JUSTICE PRACTICE WHEN IS PRETRIAL DETENTION APPROPRIATE? EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 25 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE Before defining parameters for the appropriate use of pretrial detention, one must first understand the history of punishment in America. After all, minimizing harm to the innocent is one of the core demands of a society which holds true to the presumption of innocence. Additionally, detaining individuals or Delegates of Maryland 1776; Palmer 2013). setting a high bail as a form of punishment More often the punishment for committing is in clear violation of the right to due a crime in the colonies, especially felonies, process as articulated in the 5th and 14th was death (Gertner 2010:692). The severing Amendments (University of Minnesota N.d.). of limbs, although a more common Thus any intervention by the justice system punishment in the Middle Ages, is practiced which looks like punishment conflicts with in some countries even in the modern era these demands. (Newsweek Staff 2010). Historically, the punishment for crimes was Punishment also historically included death, banishment, and the cutting off of shaming—a concept still present in modern limbs. Our nation was founded in part by modes of punishment today. During the individuals who came to the new country colonial era, colonists could be held in as part of their punishment. Roger Williams, stockades as targets of public ridicule one of the founders of Rhode Island, started (Barnes 1921:36). A few centuries later, his journey after being exiled for his religious stockades were included by one Arkansas beliefs (Palmer 2013). Although many states town as a possible form of punishment specifically precluded banishment in their for parents whose child violated curfew Constitutions, others still allowed for exile a second time after the parents had or banishment as a form of punishment received written notice of a first violation (Office of the Chief Clerk of the Senate 2014; (Freeman 1989). Today, public shaming is EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 26 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE often amplified by mass media and the digital Our argument places a premium on the age—something as simple as a booking importance of punishment following photo can be used to shame a convicted adjudication. Thus, we note that risk of individual for decades to follow and to punish flight or corruption to the trial—whether individuals who have not been found guilty. by intimidation of witnesses or court proceedings—is the only basis for the setting Eventually, punishment came to be of bail and pretrial, preventive detention identified with incarceration.11 Indeed, historically grounded in our jurisprudence. incarceration was a way of ensuring equality As Appleman notes, “although the specific in punishment, in contrast to shaming intent of the Framers regarding bail cannot penalties, and reinforcing the idea that in a be conclusively determined, all available democratic republic, a citizen’s most sacred evidence points to the fact that pretrial treasure was her liberty. In America today, detention, both under English common incarceration remains a primary mode of law and at the time the Constitution punishment, and the prison cell is the most was written, was limited to flight risks” powerful symbol of (in)justice. But the (Appleman 2012:1335). The setting of bail has message of equality and the sacred idea of historically been allowed to differ between liberty is undermined, if such liberty was ever defendants according to his or her flight real or fought for on behalf of all in American risk as noted in as noted in Stack v. Boyle society, when the “Land of the Free” is (Stack et al. v. Boyle, 1951). 12 the number one incarcerator in the world, renowned for locking her people up and In contrast, pretrial detention used throwing away the key. Make no mistake: preventively to promote public safety pretrial detention is one factor that drives is improperly used much too often to that reputation. restrict liberty and rationalize the use of high monetary bail and detention. Given this history lesson and the necessity In these circumstances, detention is that punishment not be delivered prior purportedly not being used as punishment to a determination of guilt, the problems but rather to protect the public from harm with pretrial detention are apparent. When by incapacitating the defendant so they an individual is detained prior to trial or cannot commit any new crimes outside assessed a high bail that cannot be paid and of jail. But this rationale is problematic then locked up, he or she faces the same set for at least two reasons. of circumstances that one would receive if found guilty and delivered punishment. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 27 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE First, it is not at all clear that pretrial detained for several days pretrial but detention advances public safety in ultimately deemed low-risk and therefore a straightforward way. Research suggests released in advance of trial have a 22 percent that pretrial detention can actually higher chance of failing to appear after promote future criminal activity (Heaton they are finally released than those who et al. 2017:22, 33).13 One study found that are in similar circumstances but held for after only two or three days in detention, 24 hours or less (Ibid 10). Individuals who are individuals deemed to be “low-risk” were held in detention for longer periods of time about 40 percent more likely to commit in advance of trial, for 2 weeks to a month a crime pretrial upon release when compared before being released, have a 41 percent to other low-risk individuals who were likelihood of failing to appear over those not detained for 24-hours or less (Lowenkamp, held in pretrial detention (Ibid 10).14 One must VanNostrand, and Holsinger 2013b:3,22). wonder why these people were ever detained This sad statistic gets worse with time: at all. Making matters worse, the system low-risk individuals who were held for and the public then evaluates recidivism 31 days or longer were almost 75 percent based on the person’s post-adjudication more likely to commit a crime upon release behavior without taking into context the than those whose presumption of innocence harm the criminal justice process has done was honored (Ibid 11). While research has to the individual—isolation from family, loss not totally captured why this is the case, of employment, stigmatization. They then it’s not hard to fathom some of the factors: use this statistic, again without context, as due to detention, individuals may lose their proof of an individual’s incorrigibility or lack hope, jobs, and stable housing only to come of rehabilitative potential. Pretrial detention home to the numerous family problems that clearly is misused under the current system are related to being locked in a cell. It’s no and actually serves to undermine its wonder Dr. Tapia described jail as smelling purported goals. of the loss of hope and the American Dream. Second, current normative justifications Pretrial detention, even in what one for detaining someone for the supposed might consider to be “small doses”, is danger they present to society in the future what those in the medical profession would lack proper legal footing. Mechanisms which call iatrogenic—a well-intended approach predict an individual’s risk of committing that actually creates disease—and let’s a new crime are, in part, based on the not forget: first do no harm. For example, assumption that the accused is guilty of the research suggests individuals who are alleged offense, violating the presumption EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 28 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE of innocence. And in bail proceedings, Of course, we want our criminal justice individuals are to be given a presumption system to keep us safe, but we must of release. Additionally, there may be many acknowledge the long history of preventative individuals who are guiltless yet appear to detention being overused and done so pose an additional risk to society. Imagine, inequitably. In contrast, other alternatives for example, the individual with mental to pretrial detention may be better able to illness who exhibits erratic behavior. assuage community safety concerns without Although innocent, this individual may be infringing on individual liberty. more quickly detained than an individual who has committed crime but appears to be more mentally competent. Not only is this unjust, but by detaining the individual with mental illness pretrial rather than getting them help in the community, we’ve further disconnected them from the services and environment critical to addressing their illness. As a result, we are promoting their likelihood of actually committing a crime in the future. □ EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY OF COURSE, WE WANT OUR CRIMINAL JUSTICE SYSTEM TO KEEP US SAFE, BUT WE MUST ACKNOWLEDGE THE LONG HISTORY OF PREVENTATIVE DETENTION BEING OVERUSED AND DONE SO INEQUITABLY. ■ 29 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE WHERE DO WE GO FROM HERE? ALTERNATIVES TO AND SAFEGUARDS AROUND PRETRIAL DETENTION EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 30 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE We have argued that detention pretrial should be exceedingly rare, used only to assure a defendant’s presence at the adjudication of the crime with which he has been charged or to protect that adjudication by keeping those associated with the trial such as judges, jurors, and witnesses safe. Our approach does not imagine any room facilities under much more carefully for predictions of danger to the community prescribed criteria than those we use today in general, unconnected to the defendant’s to detain individuals prior to adjudication trial process, as a basis for pretrial of their crimes (and usually for much detention. While we have removed this shorter periods of time). Moreover, and rationale altogether, incremental reform similarly, under even more constrained that moves us toward a presumption of and circumscribed determinants than those liberty that protects the innocent is still applicable to civil commitment, the state possible and necessary. can contain individuals with contagious diseases in places separate from the general Agencies that desire to address danger in population for public health reasons (Center a preventive way have means of doing so for Disease Control 2020). Obviously these other than incarceration that can better actions limit an individual’s freedom for promote the safety of the community in the the public good, but they do so, at least pretrial setting. Critically, in addition to being in the modern era, in places that typically more effective and likely less expensive, do not smell nor look like death, and, these other mechanisms can be more clearly critically, are not associated with the social differentiated from punishment. meaning of jail because their primary aim is treatment provision and not punishment.15 There is, for example, a long history and Of course we acknowledge there are those practice of involuntary commitment of that would argue that many mental health people with mental illnesses to treatment facilities represent an American parade EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 31 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE of horribles, but an important difference up for adjudication than detention. between these facilities and jails is that their We can, for example, send text reminders purpose is not explicitly designed around so people don’t forget their court dates or restricting freedom as a punishment for have individuals check-in with supervision criminal offending. Instead, for good or officers via phone calls or mobile apps. ill, the purpose of freedom restriction is If needed, we can also place people maximizing social good usually for health on pretrial supervision with electronic reasons. While there may well be overlapping monitoring so long as they can receive case consequences of the hospital and the management related to behavioral health, jail, the logic of the jail is not the logic of substance abuse, etc. (whatever is the risk the quarantine, and that is a difference factor thought to make them dangerous). that matters to procedures designed to This is already something which is occurring place people in the relevant spaces. We in multiple jurisdictions that have embraced already know of, and already have in place, bail reform. Indeed, in Washington, D.C., procedures for more careful determinations roughly 90 percent of individuals arrested of dangerousness before depriving a person were released pretrial without having to of their freedom. We do not think it is too secure cash bail in 2015 (Marimow 2016). much to ask that states follow such familiar And if the impetus for denying bail and practices if they insist that pretrial detention ordering pretrial detention is risk of flight, is necessary. judges can use other tools such as ordering passports to be surrendered or assets to Even if they do believe it necessary, we be frozen to ensure their presence at court. hope that state officials will agree with us By bolstering the use of these alternatives that there are other much less restrictive and greatly limiting the circumstances in means of assuring that individuals show which detention and cash bail, which in □ EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY AGENCIES THAT DESIRE TO ADDRESS DANGER IN A PREVENTIVE WAY HAVE MEANS OF DOING SO OTHER THAN INCARCERATION THAT CAN BETTER PROMOTE THE SAFETY OF THE COMMUNITY IN THE PRETRIAL SETTING. ■ 32 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE practice leads to detention, can be assessed, necessary, jurisdictions should do their we move one step toward presuming best to ensure a defendant’s right to innocence. Of course, while doing so we a speedy trial. Often, individuals held must ensure alternatives to cash bail and pretrial may wait months—and sometimes detention do not result in over-monitoring years—until their case is decided (Kovaleski or burdensome requirements that result 2017). In some cases, this occurs as part in technical violations and a return to jail. of a defense strategy to have more time to work out a plea, with the knowledge that Another way to bolster a presumption judges often reward credit for time served, of liberty is to ensure defendants have and other times it is the fault of prosecutors. counsel present at bail hearings and that Changing state statute or local bail policy to bail decisions are made with ample time, order that individuals held pretrial have their consideration, and gravity. Giving people hearing within weeks—or at most several two or three minutes time to lay out the months—is critical to limiting the harm to circumstances and their arguments for bail the presumption of innocence as well as the make the presumption of innocence and defendant. For example, in New Jersey, an justice a mockery to all. And when counsel individual cannot be held in jail more than is absent, the burden of proof tilts toward 90 days prior to their indictment or 180 days the defendant rather than the state. before the beginning of his or her trial following an indictment (Grant 2019:37–38). Finally, in the hopefully rare instances Other jurisdictions should consider adopting in which pretrial detention is deemed similar statutes. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 33 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE CONCLUSION Rampant pretrial detention erodes the We must understand the presumption of meaning of the presumption of innocence innocence represents more than punchlines (Justice and Meares 2014). Pretrial detention, about current social media movements—it’s as currently used, tears apart individual lives, part of the fabric that makes up the Republic. families, and entire communities. It hurts It protects our citizens from something that our local economies while further burdening smells like death, it protects hope, it protects taxpayers. It puts public health at risk. And it the American Dream. risks rather than promotes long-term public safety. But, perhaps most importantly of all, We are aware that there are some pragmatic it is a direct contradiction of the principles difficulties with our position, but the legal upon which this nation is founded. history is indisputable and understanding the legal truth is the first step at creating Adams’ quote mentioned above, as good policy. Courts should uphold the powerful as it is, is too often cut short. presumption of liberty or release and move Adams continues after his epigram that to creating preventive detention standards “[i]t is more important that innocence be that permit only those who pose a danger of protected than it is that guilt be punished.” flight or failure to appear or potential harm Indeed, Adams continues with a warning: to the trial process. Prior to being detained, prosecutors should have to argue their case For guilt and crimes are so frequent in a detention hearing with a higher burden in this world that they cannot all be of proof—clear and convincing evidence— punished. But if innocence itself is placed on the state. At the state and local brought to the bar and condemned, level, jurisdictions can work to expand their perhaps to die, then the citizen will network of detention alternatives—through say, ‘whether I do good or whether I do mechanisms such as pretrial services, evil is immaterial, for innocence itself electronic monitoring, or behavioral case is no protection,’ and if such an idea management—to meet the needs of and as that were to take hold in the mind concerns around high-risk defendants. of the citizen that would be the end Indeed, by following the precedent of areas of security whatsoever (Adams 1770). such as the District of Columbia and New EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 34 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE Jersey, we can effectuate an upholding discrimination, and often their communities, of both our laws and ideals, keep witnesses is broken, making public safety that much and victims safe, and ensure that juries are harder to secure. In a truly just system, the free to consider the evidence before them aims of public safety, order, and individual without threat from the defendant. liberty must be more carefully balanced by using meaningful procedures that respect When young and old, black and white, the rights of individuals at issue. and rich and poor are treated differently— presumed to be more or less innocent— on account of their age, race, ethnicity, or wealth, equality is violated. Furthermore, the trust in the legal system previously held by those who have faced such □ EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY PRETRIAL DETENTION, AS CURRENTLY USED, TEARS APART INDIVIDUAL LIVES, FAMILIES, AND ENTIRE COMMUNITIES. IT HURTS OUR LOCAL ECONOMIES WHILE FURTHER BURDENING TAXPAYERS. ■ 35 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE ENDNOTES 1 Most felony defendants held pretrial 7 See case section describing the 12 Reinforcing this idea was the in the large urban counties studied disadvantages to an accused of fact that enslaved peoples were not were assessed bail but were unable lengthy pretrial detention. incarcerated in the antebellum South. 8 For instance, studies have shown 13 It should be noted that many of 2 For a brief history of the rise of that pretrial detention can result these studies are looking at individuals “dangerousness” as a rationale for in lower formal sector employment who were given bail they couldn’t pay the setting of high bail or detention, three to four years after a bail hearing. and not ordered detained. This study see Goldkamp (1985). See Dobbie et al. (2018). in particular concerns misdemeanors 3 Maryland and North Carolina 9 In one study in Philadelphia, pretrial have neither constitutional nor detention led to a 42 percent increase 14 It is absolutely true that one could statutory provisions regarding in sentence length. See Stevenson interpret these numbers to suggest pretrial release eligibility. (2018), supra note 18. In another that the poorest in our society are also study in Harris County, Texas, going to have troubles in areas of work, misdemeanants detained pretrial lack of community connections, and were found to be 25 percent more family support, so they are also the likely to see their case result in a same people who will be detained conviction and 43 percent more likely longer. This theory, therefore, suggests to be sentenced to jail time. See Heaton that defendants with a propensity to et al. (2017). This is true for both high commit crimes or fail to appear will and low risk individuals (based on also be the same people who lack the numerous factors including criminal sophistication to obtain their release 5 For example, in several New York history records, the crime charged, within 24 hours—therefore there is counties, in Philadelphia, and in Harris and ties to community. a high correlation between time in to pay; few were denied bail outright. 4 California got rid of money bail by law, but the law’s fate will be decided in a November 2020 referendum after both bail industry interest groups and anti-carceral advocates argued that it would either result in the release of violent offenders, or lead to more preventive detention. See Ulloa (2020). County (Houston), Texas, defendants may not have a lawyer present at their arraignment when bail is set. See Stevenson (2017:5). 10 Over three million individuals were on probation, which is typically used as an alternative to incarceration under the adult criminal justice 6 Risk assessment tools are system at year end 2016. See increasingly being used to inform Kaeble (2018), page 3. bail decisions. See Desmarais and Lowder (2019). EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY in Harris County. preventive detention and the likelihood of committing a crime upon release. To be sure there are some that fall squarely into this logic map. However, were this strictly true, we would not see the drastic difference in time held between low-risk and what many would 11 For a history of the rise of the prison call high-risk defendants. Indeed, those system in America, see Barnes (1921). that in the high risk category have ■ 36 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE very little correlation between time in jail and the likelihood of crimes upon release. The same holds true for the likelihood of high-risk individuals failing to appear. 15 We hate to say it again and again, but it matters that the time limits of confinement in these other institutions typically are much shorter than the period people often spend in jail, and when they are not, there are legislated requirements that the state officials who seek to detain must, on a regular basis, demonstrate that there is a continuous threat, illness, etc, presented to the public by the person the state seeks to detain. EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 37 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE REFERENCES Adams, John. 1770. “Adam’s Bowers, Josh. 2008. “Punishing the (www.ct.gov/ctsc/lib/ctsc/ Argument for the Defense: Innocent.” University of Pennsylvania Pretrial_Release_and_Detention_in_ 3–4 December 1770.” National Law Review 156:1117–79. CT_2.14.2017.pdf). Retrieved March 13, 2020 (https:// Bradford, Spike. 2012. 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Pie 2019. Northampton, MA: Prison STATUTE-84-Pg473.pdf). 2020 (www.themarshallproject. Policy Initiative. Retrieved March 13, EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY ■ 41 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE ACKNOWLEDGEMENTS AUTHOR NOTE The authors would like to thank Emily Mooney, fellow at the R Street Institute, Justin Torres, and Sam Kuhn for their drafting and research support of this article, as well as Akhil Amar for posing provocative and pointed questions to consider in the paper. They would also like to thank Executive Session colleagues Laurie Garduque, Melissa Nelson, Abbey Stamp, Kevin Thom, Katharine Huffman, Bruce Western, Vivian Nixon, Evie Lopoo, and Anamika Dwivedi, who provided invaluable feedback on earlier drafts of this paper. Lastly, the authors are extraordinarily grateful to Cherise Fanno Burdeen of the Pretrial Justice Institute for her insightful input and editing efforts. Tracey Meares is the Walton Hale Hamilton Professor at Yale Law School and the founding director of the Justice Collaboratory. Arthur would also like thank his co-author, Professor Tracey Meares, who not only developed the idea this paper is based on and honored him with a co-authoring spot, but also is his intellectual role model. Designed by soapbox.co.uk EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY Arthur Rizer is the director of criminal justice and civil liberties at the R Street Institute. Arthur is also an adjunct professor of law at George Mason University’s Antonin Scalia Law School and a visiting lecturer at the University of London, University College London in the Department of Security and Crime Science. 42 THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE MEMBERS OF THE EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY Abbey Stamp | Executive Director, Greisa Martinez Rosas | Deputy Nneka Jones Tapia | Inaugural Leader Multnomah County Local Public Safety Executive Director, United We Dream in Residence, Chicago Beyond Coordinating Council Jeremy Travis | Co-Founder, Square Pat Sharkey | Professor of Sociology Amanda Alexander | Founding One Project; Executive Vice President and Public Affairs, Princeton University Executive Director, Detroit Justice of Criminal Justice, Arnold Ventures; Center & Senior Research Scholar, President Emeritus, John Jay College University of Michigan School of Law of Criminal Justice Arthur Rizer | Director of Criminal Katharine Huffman | Executive Justice and Civil Liberties, Director, Square One Project, Justice R Street Institute Lab, Columbia University; Founding Bruce Western | Co-Founder, Square Principal, The Raben Group One Project; Co-Director, Justice Lab Kevin Thom | Sheriff, Pennington and Professor of Sociology, Columbia County, South Dakota University Danielle Sered | Executive Director, Common Justice Daryl Atkinson | Founder and Co-Director, Forward Justice Kris Steele | Executive Director, TEEM Laurie Garduque | Director, Criminal Justice, John D. and Catherine T. MacArthur Foundation Lynda Zeller | Senior Fellow Behavioral Elizabeth Glazer | Director, New York Health, Michigan Health Endowment City’s Mayor’s Office of Criminal Justice Fund Elizabeth Trejos-Castillo | Matthew Desmond | Professor C. R. Hutcheson Endowed of Sociology, Princeton University Associate Professor, Human & Founder, The Eviction Lab Development & Family Studies, Texas Tech University Elizabeth Trosch | District Court Judge, 26th Judicial District of North Carolina Melissa Nelson | State Attorney, Florida’s 4th Judicial Circuit Nancy Gertner | Professor, Harvard Law School & Retired Senior Judge, United Emily Wang | Associate Professor States District Court for the District of of Medicine, Yale School of Medicine; Massachusetts Director, Health Justice Lab & Co-Founder, Transitions Clinic Network EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY Robert Rooks | Vice President, Alliance for Safety and Justice & Associate Director, Californians for Safety and Justice Sylvia Moir | Chief of Police, Tempe, Arizona Thomas Harvey | Director, Justice Project, Advancement Project Tracey Meares | Walton Hale Hamilton Professor, Yale Law School & Founding Director, The Justice Collaboratory Vikrant Reddy | Senior Fellow, Charles Koch Institute Vincent Schiraldi | Senior Research Scientist, Columbia University School of Social Work & Co-Director, Justice Lab, Columbia University Vivian Nixon | Executive Director, College and Community Fellowship THt SQUARt ONt PRDJrCT REIMAGINE JUSTICE The Executive Session on the Future of Justice Policy, part of the Square One Project, brings together researchers, practitioners, policy makers, advocates, and community representatives to generate and cultivate new ideas. The group meets in an off-the-record setting twice a year to examine research, discuss new concepts, and refine proposals from group members. The Session publishes a paper series intended to catalyze thinking and propose policies to reduce incarceration and develop new responses to violence and the other social problems that can emerge under conditions of poverty and racial inequality. By bringing together diverse perspectives, the Executive Session tests and pushes its participants to challenge their own thinking and consider new options. ~ COLUMBIA UNIVERSITY I JUSTICE LAB