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

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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.

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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.

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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,

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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.

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THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE

THE CURRENT
STATE OF
PRETRIAL
DETENTION

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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

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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

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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

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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,

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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.

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RACIAL JUSTICE IN CRIMINAL JUSTICE PRACTICE

WHY DOES THE
PRESUMPTION
OF INNOCENCE
MATTER?

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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”

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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

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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

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RACIAL JUSTICE IN CRIMINAL JUSTICE PRACTICE

THE IMPACT
OF PRETRIAL
DETENTION

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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.

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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

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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.

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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

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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).

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24

RACIAL JUSTICE IN CRIMINAL JUSTICE PRACTICE

WHEN IS
PRETRIAL
DETENTION
APPROPRIATE?

EXECUTIVE SESSION ON THE FUTURE OF JUSTICE POLICY

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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

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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

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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

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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.

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29

THE ‘RADICAL’ NOTION OF THE PRESUMPTION OF INNOCENCE

WHERE DO WE
GO FROM HERE?
ALTERNATIVES
TO AND
SAFEGUARDS
AROUND
PRETRIAL
DETENTION
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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

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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

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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

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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.

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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

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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