Pretrial Detention Is Terrible
It encourages police abuse, flips the presumption of innocence, screws poor people, and is made mostly irrelevant by modern technology. It should be rare.
Every time one of the January 6 insurrectionists comes before a court for a pretrial detention hearing, people go online and passionately argue against bail, saying that these guys deserve to be behind bars for what they did. And they do. But not yet. They haven’t been convicted of anything.
Pretrial detention is one of the least theoretically justifiable things our criminal justice system does. Throwing someone in jail who has not been convicted of anything is terrible on any number of levels. For one thing, while judges piously declare that the practice is not about punishment, police officers don’t care about penological theory- they know they can punish people who they don’t like with a rough ride in a squad car and time in the lockup until they can make bail.
For another, pretrial detention flips the presumption of innocence. You are supposed to be imprisoned after the state proves your guilt beyond a reasonable doubt. When a person is detained pending trial, sometimes for months or even over a year (while their attorney prepares a defense), the inmate never gets that time back, even if she is completely innocent of all charges. Indeed, conditions at jails are often worse than at prisons- jails, designed for short term stays, are often overcrowded and have very few services for inmates (such as coursework, contact visits, etc.). So being in jail awaiting trial is actually worse than the “punishment” you receive after a conviction.
Pretrial detention is also horrible for poor people, because it is coupled with a cash bail system. Wealthy and middle class people can make bail; poor people can’t. So this creates a severe inequality in our justice system, as a poor person remains in pre-trial lockup facing an accusation of the same crime a wealthier person will be let out of jail pending trial for.
And pretrial detention is a 17th Century solution to a 21st Century problem. We have all sorts of technology, from ankle bracelets to surveillance equipment, to keep tabs on people pending trials. And yet we routinely lock people up in the county jail anyway. Why? It’s not to save money- obviously jails cost more than monitoring technology. I suspect it’s because, no matter what people say about dangerousness, what we really want to do is get a head start on punishing people. Criminals are unpopular, and ordinary people don’t presume innocence.
What should our system actually look like? Basically, the only people who should remain in pretrial detention are those who pose a flight risk even with ankle monitoring and a revoked passport, and those who can be shown, with significant and substantial evidence, to be plotting additional serious crimes. That’s it. Everyone else should be released pending trial. The presumption of innocence should mean that you are released pending trial.
And yes, that includes Capitol insurrectionists. There’s no evidence that anyone’s plotting another assault on the Capitol, or that such an assault would work. (There’s fencing up, and the Capitol Police are ready this time.) Capitol insurrectionists are entitled to the same presumption of innocence as every other person in America. The government can (and should) prove their guilt, and there will be plenty of time to send them to prison.