An individual is taken
into custody when a crime is allegedly committed. Once the individual is in
custody, an arraignment procedure takes place before the judge to inform this
individual, who is now considered a defendant, with the readings of the
crime(s) being charged for. After the reading, the defendant is given a chance
to enter a plea where he or she can plead “guilty” or “not guilty” and based on
the response given, the defendant may be released on bail or may not be
released at all until a proper trial has taken place. This process is called a pre-trial
hearing. Should the defendant not be
released, the defendant then enters the pre-trial detention which is the
waiting game of receiving a proper trial before a judge so that a verdict can
be given to determine whether the defendant should be sentenced or released.
In the United States, when
speaking of the idea of reform, there are many issues that can be looked into when
discussing the topic of the criminal justice system. One idea that can be discussed in the means
to bring reform in the Criminal Justice system would be the reduction of
pre-trial detention. pretrial detention can be seen as an overlooked human
rights abuse. Over the course of years,
this detention has affected millions of people which is causing the defendants
to deepen poverty. During this type of detention, the defense waits for a
verdict of being found guilty or innocent which is established by a court. Whilst sooner or later, the defendants would
be determined to be responsible of any crime, till then all defendants are said
to be in a presumption of being innocent.
How is this fair to those who are found to be innocent after waiting for
the “X” amount of time in detention separated from their families, jobs, and
the outside world in general?
This paper will discuss
the pros and cons of the pre-trial detentions. It will mention the statistical
rates of prisoners being in pre-trial detention and how it effects those who
are found innocent after the wait game for a fair trial is finally over. It will also recognize who should be detained
so that detention diversions for those who shouldn’t be detained be explored.
There are about roughly 2.3
million total people held in a total 6,125 prisons excluding military prisons,
immigration detention facilities, civil commitment centers, and prisons in the
U.S. territories. Of which, as per Yale
Law School, over 20 percent of the prisoners are awaiting trial. These detainees are held in custody for a number
of reason of which includes, being potential flight risk or public safety risk. Though the option of bail may be suggested,
the bond that ties in with it may not be afforded by the defendant as it may be
set to a high-end amount depending on the severity of the accusation. However, is this fair to those who are found
to be innocent once the wait game for the trial date and the actual trial takes
In the United States, the
Fifth Amendment gives a guarantee of due process. This means to say that defendants have the
right to a fair trial and respect one’s legal rights. Since the year of 1961, it was said that the
United States correctional system became unfair. Being arrested right away meant that money is
involved to pay for bail despite the severity of the crime in concern. Due to this, it was found that many poor
defendants were forced to spend time in detention pending trial.
Not only was the
correctional system unfair to economical class minorities, but it was seen to
be equally unfair towards race as well.
This was an ongoing topic where studies have determined that people of
color were at a disadvantage in pretrial detention procedure. By saying people of color consists of Blacks
and Latinos mostly. It was founded that
back in the days they were more likely to be kept in remand rather than be even
given the option of being released on bail at pretrial stages. Because it is solely in the hands of the
judge to determine what judgement to make, whether or not the judge is racially
biased or is stereotyping the defendants in question, the judge does not get
questioned for discretion.
Though pretrial is not
meant to be a long-term process, often times it turns out to be longer than the
actual sentences received. Once the
individual is arrested and is detained, they can be held for anywhere from
weeks to months to even years pending a proper trial date. The overall impact
of the increased pretrial detainees leads to the overcrowding of prisons. When
in custody, the experience of being in detention can be infuriating. Whilst waiting to get a date for a proper
trial, as mentioned, the detainees spend their time behind bars with other
inmates. Whether one is innocent or not,
they experience the same level of threats and violence from the other inmates
as well as the guards. Such experiences include
but are not limited to various acts of humiliations and physical assaults that can
lead the detainees to be traumatized. The defendants who are detained for pretrial
detention are often exposed to tortures and diseases. In this process, many of the detainees are
not able to meet with their lawyers which is a violation of their Sixth
Amendment “right to counsel.” They are
also subjected to be arbitrary actions by the corrupted officers as well as
other inmates where the defendants may be beaten down for the time period of
Pre-trial detention also has
a negative influence on defendants and their families and surroundings as well.
Detainees have to encounter with humiliation of being behind bars upon their
return to society although he or she is found to be innocent of the accusations. The humiliation and the negativity are often
found to irreversible; which include from having loss of liberty to being cut
out from family and friends which can psychologically damaging.
Regardless of whether the
defendant is found guilty or not, the defendant may already deal with home and/or
job loss. While being detained, the defendant cannot work nor can they earn a
source of income. With the job losses comes the loss of income which can lead
the defendant to not be able to support his or her housing pays. Depending on
the length of being detained, the defendant risks his or her long-term
unemployment as well. Therefore, there
may be cases where upon release from being detained, the defendant may find him
or herself having limit to their source of incomes which can at times lead to
filing bankruptcies. The lack of money can then lead the now labelled innocent
individual to turn towards taking the criminal acts paths. Not only can the defendant lose his or her
job, but can also give up on their education causing a ripple effect. Study shows young adults who are studying to
be as pretrial detainees. Due to being
detained, often times these young adults are forced to leave education hanging
and due to not having proper education they may find themselves not be able to
get a job upon release.
Pretrial detention can
impact individuals to move towards poverty.
For middle and lower-middle class people, it pushes them to experience
an uncertain unemployment. For those who
are already out on the streets, it pushes them to an even worse position.
How can this be dealt
with? It is said that an arrestee should
be brought before a judge within 24 to 48 hours of being arrested for a
pre-trial hearing. Should the hearing
result in entering detention timing for a proper trial date, then court should
provide various forms of release options which can range from secured release
to bail. These options should have a
contract where the defendant is required to appear at court hearings when told
to do so and should cooperate with any investigating situations pending trial.
Prior to discussing such options, courts should look into the defendant(s) prior
history as well criminal records.
Depending on the findings of the individual(s) records, courts can
suggest the options of house arrest with supervision, should the result show
any public risks.
The option of bail should
be measured out thoroughly. It is said
that once in custody, before a defendant goes to pre-trial hearing, a Pretrial
Service Officer would go do a background investigation of the defendant and his
or her lifestyles. This officer is from
the court and upon receiving all needed information, the officer then prepares
a report that helps the judge determine the risk of the defendant in public
community. The report and the nature of
the criminal offense together allows the judge to come to a decision of what
amount to set bail at. This amount can
be anywhere from a few hundred dollars to thousands of dollars as well. Often times in news we hear that bail bond is
set to high amounts where the defendant may not be able to afford to pay it
despite having a co-signer. This itself leads criminal justice proceedings to
serve injustice to those who are not financially stable. The money bail should be considered according
to the defendant’s financial and overall circumstances.
Taking the chance of
releasing more individuals on pretrial would have a positive impact. This would
allow the government to reduce the number of people who are actually in prison
but it will also allow the defendants to not be at risk of losing his or her
job. This would also give a chance for
the defendants to still be with their families and not be seen as an outcast as
he or she would have been seen if held in pretrial.
The cost of incarceration
on an annual average is roughly $182 billion.
This cost not only covers those who are already convicted but also
covers the cost of those who are locked up before trial. Of the 2.3 million total individuals behind
bars, the United States has about 451,000 individuals who are found behind bars
for pre-trial detention. As of February
2017, it was reported that pre-trial detention costs roughly $13.6 billion each
year. That is about 7.5% of the total
annual cost. Though percentage wise this may seem like a small fraction of the
overall cost. However, in terms of money factor, billions of dollars are in use
per each percent as being discussed.
Therefore, the overall value of the small percentage holds a big amount
in concern. If this pre-trial detention
cost is reduced, then the government can save billion of dollars annually and
that can amount can be used in alternate treatments or programs within the
justice system to help the incarcerated to reform and rehabilitate.
It can be said that the
government should make an effort to not use pretrial detention as often for
their own benefit. This will allow the
prisons to be less crowded than they already are. This is not to say that pretrial detention
should be fully eliminated, but it should be used as a one of the last resorts
should the level of safety risk of the defendant be found to be at high level
of intensity or if the court has other means of reasonable grounds of not able
to release the defendant with strong backups.
Such evidences may include that the defendant have a history of failure
to appear in court or the defendant may intervene with the investigations going
on within the proceedings. With the money that the government saves, the amount
be put to reinvest in different areas of crime preventions and can also better
the public safety. This would make the
pretrial detention fair and can allow the government to serve a better justice.