It is crucial to examine problems with pretrial detention. First the cost to taxpayers to house innocent defendants before trial is staggering. Two thirds of the approximately 740,000 people in jails have NEVER been convicted of a crime. In 1970, 53% of the jail population was made up of pretrial detainees. In 2015, that number has jumped to 64%. That is a 433% increase! Jailing these innocent people costs U.S. taxpayers approximately $38 million every day, or $14 billion annually.
But there are more hidden costs to society reaching as high as $140 billion per year, according to the Pretrial Justice institute report. The consequences of pretrial incarceration include loss of employment and opportunity. If defendants can’t show up to work, they may get fired and lose access to benefits, including public assistance for housing. They can fall behind on payments for housing and car loans, or be cut off from health care or family support networks.
Cash bail actually hurts the system by making it less likely for people to appear for court. A 2013 study found that people detained in jail two to three days pretrial and then released prior to the outcomes of their cases were slightly more likely (1.09 times) to fail to appear than people detained for up to one day.19 The impact of longer stays in pretrial detention was greatest for people otherwise considered “low risk” for FTA or a new arrest while awaiting trial, as determined by a pretrial risk assessment tool.
Elizabeth Swavola, program manager at the Vera Institute for Justice, indicates that a growing body of evidence suggests pretrial detention is not as effective as system stakeholders may believe it to be. Studies also show that people who spend time in jail pretrial are treated more punitively than similarly situated people who are released: they are more likely to be convicted, sentenced to incarceration and to receive longer sentences. Finally, because inability to pay monetary bail is what often keeps people in pretrial detention, it has a disparate impact on poor and low-income communities and communities of color.
Wisconsin case law explains that arbitrary action by a circuit court undermines attorney and public confidence that they will receive fair treatment by the circuit court. The conduct of those who aspire to be judges, both off the bench but particularly on the bench, must be such as to warrant the respect of the public and the confidence of litigants that they will be treated fairly, impartially and considerately. Anderson v. Circuit Court for Milwaukee County, 219 Wis. 2d 1 (1998). A circuit court’s interest in creating a particular courtroom “culture” does not outweigh the need for fairness. Due process protects against arbitrary judicial bail decisions. State v. Ransdell, 2001 WI App 202. Data demonstrate the arbitrariness judicial cash bail decisions.
A study by Megan Stevenson, a fellow at the University of Pennsylvania Law School, found two interesting facts from her data: one, that when facing equivalent bail amounts, people from low-income ZIP codes are less able to afford bail than people from wealthier neighborhoods and, therefore, are more likely to be detained. Further, judges tend to release women at higher rates and set lower bail amounts for them.
Finally, and perhaps most importantly, it has to be understood that to end the blight of mass incarceration in America we must first attack the arbitrary practice of cash bail. According to the New York City Criminal Justice Agency, you are more likely to be convicted of the crime charged when you are detained prior to trial. Phillips, Mary T. 2008. “Bail, Detention, & Felony Case Outcomes.” Research Brief series, no. 18. New York: New York City Criminal Justice Agency, Inc. ; Phillips, Mary T. 2007. “Bail, Detention, & Nonfelony Case Outcomes.” Research Brief series, no. 14. New York: New York City Criminal Justice Agency, Inc. Whether you are detained before trial can very well predict whether you are eventually convicted, as people become desperate to leave jail and agree to plea deals. Some prosecutors know how to work this system and take advantage of these desperate situations.
The money bail system only exacerbates the existing, egregious disparities in our justice system. It has been found that American courts set significantly higher bail amounts for black individuals than they do for white individuals, which is only compounded by the likelihood that people of color are more likely to serve pretrial time for accused crimes. On top of this fact, courts across the country are using digital risk assessment algorithms (RAAs) to recommend bail amounts for accused criminals. But it has been found that these systems — despite relying on the ones and zeros of a machine — are frequently prejudiced, falsely flagging black individuals as high-risk, for instance, at twice the rate of whites.