America’s Pretrial System Is Broken. Here’s Our Vision to Fix It.

We envision a country where pretrial incarceration is all but eliminated.

ACLU National
Apr 2 · 5 min read

Reduce the harms of the pretrial process

Jurisdictions undertaking reform have to meaningfully move away from a “law and order” approach to a humanizing one. For example, when a person has work or family obligations, they should have the right to reschedule a court date without being punished. Moreover, we should evaluate closely what we criminalize, decriminalize widely, and invest instead in community-based alternatives to incarceration.

Eliminate pretrial profiteering

No one should make a living on the backs of people being churned through the criminal legal system. We must completely abolish for-profit bail and for-profit pretrial supervision.

Create a wide net of people eligible for mandatory and presumptive pre-booking release on no conditions

Even a day in jail causes tremendous harm and negates, rather than promotes, the purposes underlying our bail system. And jurisdictions that have adopted pretrial reform are generally left with the subjectivity of judges’ determinations about whom to free and whom to detain. Meanwhile, most people are likely to show up for court and pose no threat to public safety. Given these realities, we have prioritized diverting as many people as possible from jails in the first place.

Facilitate speedy individualized release hearings — distinct from “detention hearings” — with necessary due process protections

If a person is arrested, they should proceed to a hearing within 24 hours at which a judge can only impose conditions on her release, not order them jailed. Given the presumption of innocence and the fundamental right to liberty, everyone will be presumed to be released with no conditions, regardless of what they are accused of.

Narrowly limit who is jailable before conviction

We cannot continue to assume someone is dangerous and should, therefore, be in jail because they are charged with a serious crime. Detention should be the exception, not the rule. Courts should only be empowered to jail someone awaiting trial in rare cases where a person is accused of an extremely serious charge and the prosecutor files a motion establishing that pretrial jailing should be considered. People then need to receive a hearing, with public defenders available. There can be no shortcuts to this process.

Ensure robust appeal rights and speedy trial protections

A judge’s decision to do anything other than release someone outright should never be absolute. People ordered to stay in jail should be able to appeal their detention, and people released on conditions should be able to ask the court to reconsider those conditions.

Actuarial algorithms should not play a role in pretrial systems

The ACLU has significant concerns about actuarial algorithms’ potentially detrimental racial impact, lack of transparency, and limited predictive value. Not only do these tools not provide the specific, individualized information required to justify limiting a person’s pretrial liberty, but the underlying racial bias presented in criminal justice data points makes it impossible to reconcile how existing tools operate with our vision of justice.

Eliminate wealth-based discrimination

No one should be deprived of their liberty or subjected to onerous conditions simply because they cannot obtain a sum of money. As is constitutionally required, any time bail or release conditions are considered, courts must undertake a careful examination of the person’s ability to pay any amount.


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ACLU National

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The ACLU is a nonprofit, nonpartisan, legal and advocacy organization devoted to protecting the rights of everyone in America. To learn more, go to aclu.org.

ACLU

ACLU

For nearly 100 years, America's guardian of liberty