Thoughts on Liberty and Pretrial Justice

By Alison Shames and Matt Alsdorf

The 4th of July celebrates a uniquely American view that the purpose of government is to protect individual rights and freedoms. Central to the founding fathers’ concept of freedom, reflected in both the Declaration of Independence and the U.S. Constitution, is the right to physical liberty.

Nowhere is our right to liberty more critical than in the criminal legal system–one of the only areas where the government has the power to deprive people of liberty. That power, however, is carefully limited, particularly when someone has been accused, but not yet convicted, of a crime. The U.S. Supreme Court is unequivocal that “In our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception.”

The presumption of innocence is consistent with the requirement that release be the “norm” because, as the court also held, it prevents “the infliction of punishment prior to conviction.”?

But pretrial detention is not carefully limited. Across the country, detention before trial is too often the norm. Department of Justice statistics released last month show that 70 percent of people in jails have been accused but not convicted of a crime.

Why are we failing to uphold liberty and the presumption of innocence? In a word: money. Across the country, judges rarely make intentional decisions about detaining a person before trial. Instead, with very few exceptions, judges are asked to set a financial release condition—also called a money bond—for virtually everyone. Those who can pay get out, and those who cannot remain in jail.?

This is where our current practices clash with our values of freedom and the presumption of innocence.?

Not only does this go against our rights as Americans, but wealth-based legal decisions actually make us less safe because detention and release are arbitrary when based on a person’s access to money and not the risk they might pose.

Unnecessary detention—defined as detaining people who pose little risk to community safety—unequivocally leads to worse outcomes, including housing instability, loss of employment, and disruptions to family and caregiving. Perhaps as a result, any amount of time in pretrial detention increases the likelihood of re-arrest. The burden of detention falls disproportionately on poor people, especially Black and Latino people, who are subject to higher financial conditions and greater detention rates.?

We can do better by understanding how financial release conditions are used and what should replace them.

Money bonds have been persistently used in two ways. First, they are used as a release condition meant to encourage future court appearances. Second, a high money bond amount can be used to detain someone. But we have known for a long time that money does not effectively do either.?

States and localities are beginning to replace financial release conditions with commonsense practices that are both more effective and more consistent with our constitutional values. To support court attendance and law-abiding behavior, they implement pretrial services, including court date reminders, transportation vouchers, childcare, and other supportive services to help people succeed. These approaches are promising because most people who miss court are not willfully fleeing justice. Instead, life circumstances—work, transportation, illness, caregiving responsibilities—get in the way.?

To detain the small number of people who pose too great a risk to community safety, money is replaced with a rational legal framework and process that clearly defines who is eligible for pretrial detention and requires a detention hearing where prosecutors and defense counsel present arguments, may call witnesses, and submit evidence. The judge makes an “in-or-out” decision. Those detained cannot pay their way out.

Illinois is the most recent state to advance pretrial improvements and the first to eliminate financial release conditions. It expanded pretrial services statewide and uses procedurally sound detention hearings to determine who should be held before trial. Judges and prosecutors speak positively about the elimination of money bonds.?

In 1951, the US Supreme Court wrote that without the right to release before trial, “the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”

The truth–one we should remember this holiday–is that upholding American values of liberty and the presumption of innocence go hand in hand with enhancing community safety.

Alison Shames is a director, and Matt Asldorf is an associate director at the nonprofit Center for Effective Public Policy, where they co-direct Advancing Pretrial Policy and Research.