Myths versus Realities of Pretrial

One theme running through the speaker series was the cataloging of extensive harms caused by cash bail and pretrial detention—to detained people, to their families, and to whole communities. As Cook County Public Defender Sharone Mitchell said, “We know about the violence of pretrial incarceration.” Jail pulls people away from sources of stability like housing, healthcare, education, employment, and social bonds. Jail exposes people to a punishing environment, to medical neglect, and to brutality and mistreatment. Bail and jail both create economic hardship for families and adverse childhood experiences for kids of incarcerated parents. And perhaps most counter to safety myths, jail does not prevent harm. Indeed, jails are so destabilizing they become criminogenic; studies show that even among people accused for the first time of low-level, low-risk offenses – people who are unlikely to have system contact again – spending as little as 1-2 days in jail significantly increases the likelihood of future criminal system contact. 

Over the last decade, many jurisdictions have taken on pretrial reform by adopting risk assessment tools. But, as Professor Megan Stevenson explained, “We simply cannot predict with any great accuracy who is going to commit serious crime in the near future.” Complementing this point, PJI determined that these approaches have fundamental flaws, serious costs, and unintended consequences—both in terms of their limited predictive accuracy, and in terms of the way they perpetuate existing inequity by more deeply embedding structural racism in the system “because of the data that they’re built on.”

As our speakers explored, pretrial systems do not consistently honor the presumption of innocence, meaningfully ensure access to counsel for people when they are arrested, and, for people facing criminal charges, ensure the right to a fair trial by a jury of one’s peers. Cook County Public Defender Sharone Mitchell detailed how current pretrial practices result in pretrial punishment, sending people to detention that is indistinguishable from post-conviction incarceration. Similarly, Aditi Goel of the Sixth Amendment Center presented research showing that many people facing misdemeanors may never have the opportunity to have counsel appointed, or they may waive their right to counsel in coercive conditions, often as a result of judge’s instructions that their rights will be protected even if they lacked counsel. Finally, Professor Andrew Crespo explored the possibilities and pitfalls of plea bargaining strikes. Since more than 90% of state and federal cases are resolved by accused people waiving their right to a trial and pleading guilty, he posits that the system would likely crash if people insisted on going to trial instead. One possible upside to bargaining strikes is that it would force prosecutors to triage and dismiss cases, with the intended effect of decarceration. But plea bargaining strikes also carry serious risks for accused people and pose numerous collective action challenges.

As studies have shown, there is no consistent evidence that bail reform negatively impacts public safety. To the contrary, as research by PCJ Faculty Director Sandra Susan Smith shows, “Overall, pretrial detention is a far greater threat to public safety than pretrial release.” This conceptualization of tradeoffs was echoed in Prof. Megan Stevenson’s presentation: “Even short periods of time in jail are perceived as being as harmful as serious, serious crimes.”

One of the themes throughout the series was how a mix of evidence— academic research, collective action research, and lived experience from directly affected people—supported proactive reform efforts. Meghan Guevara from Pretrial Justice Institute (PJI) focused on efforts that can be undertaken right now, deeply rooted in local context and with community leadership and buy-in, to reshape pretrial systems—noting that PJI’s role is to “be a resource to communities as they figure out what does this look like for themselves.” Speakers also noted that system actors required no evidence base to build institutions of punishment yet call for mountains of proof to begin to undo the harms of pretrial systems. As Tenille Patterson from PJI said, “[T]here’s no data that suggests that asking a person to do drug testing and asking a person to have limited mobility by way of electronic monitoring and asking a person to go seek care involuntarily actually are going to create a successful return to court and prevent them from committing any crime while out.” That double-standard maintains a punishing status quo that cuts against the evidence base of what communities need to create durable safety for all.

Speakers explored the question of whose safety is prioritized in a system of cash bail, pretrial detention, and pretrial conditions that disparately targets people of color, and Black people in particular. Even when people can bail out of jail, bail extracts resources from poor communities of color—and as Sharone Mitchell said, operates as a “huge tax on Black and Brown women” in particular. But our series also repeatedly surfaced the reality that reform which does not center racial justice will not automatically result in reducing racial disparities. Indeed, without careful attention to race and racism, pretrial reforms have sometimes increased racial disparities or done nothing to disrupt them. As Will Tanzman of The People’s Lobby explained, the Pretrial Fairness Act tried to take a racially just approach because “You can’t have a real conversation about money bail without racial justice being at the center of that conversation.”