Criminal courts should consider defendants’ personal and professional lives when determining whether to grant bail, according to a forthcoming paper in the Georgetown Law Journal .
Russell M. Gold, an associate professor at the Wake Forest University School of Law, argued that the “presumption of innocence” should be foremost in the minds of prosecutors during the pretrial process, reserving detention only for those cases where they can demonstrate “likelihood of a defendant causing irreparable injury.”
Gold said judges should be required to explicitly analyze how detention would harm the personal family or economic circumstances of defendants.
“Criminal courts should not simply ignore that a defendant may lose her job, housing, or custody of a child,” Gold wrote. “Rather, [they] should consider those costs to defendants, their loved ones, and the broader public; and detain defendants only when the benefits of detention outweigh those substantial costs.”
In his essay entitled, “Jail as Injunction,” Gold drew what he called a “troubling contrast” between how pretrial decisions were made in criminal and civil cases.
While motions for preliminary injunctions in civil cases are resolved based on written briefings supported by sometimes-extensive evidentiary submissions, and after often-lengthy hearings, pretrial detention decisions speed through the criminal legal system—affording defendants only minutes to explain why they should be permitted their freedom pending trial.
“This disparity is unjustifiable,” he writes. “It is troubling that people can lose their liberty without having been convicted of a crime more easily than a corporation can be ordered to stop doing some activity until the court can figure out who is right.”
Nearly half a million people who haven’t been convicted of anything spend on average one month in pretrial detention, according the U.S. Bureau of Justice Statistics.
For some, detention could last years, with tragic results. Gold cited the case of Kalief Browder, who committed suicide after spending three years awaiting trial in New York’s Rikers Island on a theft charge that was eventually dismissed. He was just 16 when he was detained.
Browder’s death led to senators Kamala Harris and Rand Paul and introducing—via a joint column in The New York Times—a bipartisan legislation to help states to tackle bail reform through federal block grants.
“In this historical moment, where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pretrial detention,” Gold writes.
The harms of pretrial detention extend to the entire judicial process, Gold wrote, noting that defendants held in detention before trial are often more likely to plead guilty or to be convicted.
“One recent study found that defendants who are detained due to their inability to afford bail have a 30 percent greater chance of being convicted and are likely to be incarcerated for 18 months longer than defendants who are not detained pretrial but are otherwise similarly situated,” he wrote.
Gold said adopting his recommendations could lead to lower costs of pretrial detention, post-trial incarceration, and reduced recidivism.
The full report can be downloaded here.
This summary was prepared by TCR news intern J. Gabriel Ware. Readers’ comments are welcome.