It’s Time for States to Reconsider Pretrial Detention

Polis: Center for Politics
4 min readSep 19, 2022

Meredith Hutchinson (PPS ’24)

Meredith Hutchinson (PPS ’24)

On May 15th, 2010, 16-year old Kalief Browder was arrested in the Bronx for allegedly stealing a backpack. His family couldn’t afford the 3,000 bail, so he spent three years at Rikers Island, a pretrial detention center infamous for its rough conditions. He spent a significant portion of his time in solitary confinement, and he never had a standing trial. Finally, in May 2013, the District Attorney dropped the charges, and he was released. Two years later, after suffering from PTSD, he committed suicide.

Our justice system claims to uphold the ideology that one is “innocent until proven guilty.” Stories like Kalief Browder’s remind us that the archaic system of pretrial detention not only fails to endorse this but also perpetuates existing economic inequalities, representing one of the many ways that the system is designed against low-income communities of color.

Not only is the practice of pretrial detention inherently discriminatory; it also reaps no financial benefits for the government. In 2012, the annual cost per inmate at New York state-run facilities was $167,731. Pretrial detention also contributes to increasing incarceration rates in the long-run; a 2013 study found that pretrial detention makes people 3 times more likely to be sentenced to prison. In addition, if held for 31 or more days, people are 74 percent more likely to recidivate compared to those held for 24 hours. Pretrial detention removes people from vital support systems, keeps them away from their jobs, families, and other responsibilities, and requires them to make court appearances in handcuffs. All of these factors potentially make people more likely to recidivate, making no party better off. In addition, it blatantly disadvantages lower-income individuals. If pre-trial defendants can’t post bail, then they are left with no other option but to remain in detention while they await their trial.

While this issue has always been hotly contested, the COVID-19 pandemic brought it to the forefront of conversation. With Black Lives Matter protests and rallies springing up around the country, the number of arrests and detainments soared. The pandemic, however, made these arrests life-threatening, as the chances of catching COVID were dramatically increased by being in such close-quarter jails. Black Americans are 5 times more likely to be incarcerated than white Americans, putting Black Americans at a much higher risk for getting COVID-19 and suffering health consequences. This too is one of the many ways that systemic racism is baked into our criminal justice system.

State governments need to examine better alternatives to pretrial detention that limit unnecessary incarceration. Some cities have already seen success with new programs; New York implemented a law effective January 1st, 2020, stating that pretrial judges must release defendants without cash bail for misdemeanors and nonviolent felonies, accounting for around 90 percent of arrests. For such offenses, judges release individuals either with their own recognizance or with pretrial supervision conditions. All other offenses, however, still retain similar procedures for cash bail. This law also included a new provision requiring judges to consider an individual’s ability to pay when setting bail. Thus far, New York has seen considerable success with this new law. Since the enactment of the law, less than one percent of people on pretrial release are rearrested in New York City in any given month.

Washington D.C. established the Pretrial Services Agency (PSA), which has been operating for 45 years in D.C. to find more just alternatives to pretrial detention. This agency created a risk-assessment tool that categorizes each defendant awaiting trial as either a safety risk or a flight risk. A group of PSA workers are assigned to each defendant’s case and determine an appropriate level of supervision while awaiting their court date in order to reduce risk of rearrest and increase likelihood of them showing up to court. The goal is to eliminate pretrial detention except in the most dire of circumstances and to use cash bail sparingly. This system requires more resources and a rather comprehensive overhaul of the current system, but offers a much more individualized approach that could slowly eliminate the use of pretrial detention

The U.S. holds about a quarter of the world’s prison population. Finding a different way of ensuring that defendants show up to court and don’t rearrest as they await their trial is one avenue of reducing prison populations, lowering rates of recidivism, and finally ending this era of mass incarceration. This country doesn’t need any more Kalief Browders.

Meredith Hutchinson (PPS ’24) is a Public Policy Undergraduate at Duke University’s Sanford School of Public Policy. This piece was submitted as an op-ed in the Spring ’22 PUBPOL 301 course. This content does not represent the official or unofficial views of the Sanford School, Polis, Duke University, or any entity or individual other than the author.

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