Pretrial Detention in the Time of COVID-19

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The coronavirus pandemic has exposed the deep-rooted inequities of pretrial detention, and should persuade policymakers to find ways of keeping justice-involved individuals who pose little threat to public safety out of jail until they are brought to court, says a University of Alabama law professor.

In a forthcoming paper for the Northwestern University Law Review, Jenny E. Carroll says that looking at the pretrial detention system through the lens of the current health emergency makes clear that “the system faces an exacerbated challenge” both to the health and safety of those in custody and of correctional staff.

Courts across the country have closed or have significantly decreased their caseload capacity, creating a nearly insurmountable backlog of pretrial hearings while eradicating the concept of a “speedy trial,” Carroll wrote.

The court closures “raise the specter that speedy trial rights will no longer serve (if they ever did) as a backstop to indefinite periods of pretrial detention,” the paper argued.

“These complications suggest that an alternative calculation of pretrial detention is necessary in the face of this crisis and beyond—a calculation that recognizes that pretrial release may in fact promote public safety.”

While some authorities are clinging to the idea that by confining inmates to their cells, the community will be protected from disease, the Supreme Court’s own doctrine on pretrial release, which “presumes freedom as a default and detention as a last resort,” should not be ignored, the paper said.

“It would seem odd that a detainee should have more rights after conviction than before; yet, pretrial detention decisionmakers fail to take the potential detainee’s interests in safety into account when calculating pretrial release or describing community safety concerns.”

The nation’s health crisis has pulled the curtain back on a system that was already “broken and always teetered on the edge of some disaster,” said the paper.

Spurred by the spread of COVID-19 infections in jails and prisons across the U.S., justice reformers have appealed to local and government officials to release inmates who pose no threat to public safety and whose health conditions make them especially vulnerable to infection.

But opponents of release have argued that some of the most vulnerable offenders, such as the homeless or those who have substance abuse issues, should be detained “as they are less able to comply with CDC handwashing and social distancing guidelines.”

But the health crisis has underlined the “false dichotomy” between protecting the community and protecting the individual⸺and that is especially true for those held in custody who have not yet been convicted of anything, according to Carroll.

“When pretrial decisionmakers consider public safety concerns, they tend to speak in terms of the public as one body and the defendant as another—as if a defendant lives in complete isolation without a community or family of his own,” the paper said.

“This calculation, however, makes assumptions about the community itself that often fail to take to account the community’s own perceptions of the risk the defendant poses or the hardship that the loss of the defendant may produce in the life of those around him.

“In fact, the community interest in safety is often not separate from the defendant’s, but entwined with it.”

Racial Inequities

Historically, she noted, the system has trapped poor defendants, most of them individuals of color, who cannot afford to make bail.

“Compared to white men charged with the same crime and with the same criminal histories, African-American men receive bail amounts 35 percent higher; for Hispanic men, bail is 19 percent higher than [for] white men,” according figures from the Pretrial Justice Initiative cited in the paper.

The harmful consequences of pretrial detention extend beyond the individual to the community, exacerbating mistrust and hostility towards the justice system.

“The process is imperfect at best, catastrophic at worst,” Carroll wrote.

Carroll argued that the crisis represents an opportunity to reexamine many of the assumptions of pretrial detention system.

“It is an opportunity to recognize that as our nation moves forward, we must think of safety and liberty interests not just in terms of those best able to weather this crisis through the inconvenience of self-isolation and limited supplies, but in terms of how the most marginal among us will weather this storm,” the paper concluded.

The forthcoming paper can be accessed here.

Additional Reading:

Second Wave of Virus Feared if Jails, Prisons are Left Unprotected

 Is Ending Pretrial Detention a Better Alternative to Bail Than Risk Assessment?

Andrea Cipriano is a TCR staff writer.

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