America’s Pretrial System Is Broken. Here’s Our Vision to Fix It.

Every year, millions of people are arrested, required to pay money bail they cannot afford, separated from their families and loved ones, or subjected to long periods of incarceration based on the mere accusation of a crime. This all occurs while people are presumed innocent under the law. Black and brown people, their loved ones, and those without the economic resources to thrive suffer the worst harms.

Yet while there is broad consensus that our money bail system is in dire need of an overhaul, difficult questions remain about how to best shape that reform. For instance, if we abolish money bail, will judges and prosecutors seek increased authority to jail people outright pending trial? This preventive detention could result in as many people — or more — languishing in jail without their day in court.  

Further, what factors should judges consider when deciding to release or detain a person who hasn’t been convicted? How much evidence must the government show before someone is put in jail awaiting further process?  Can — and should — predictive algorithms based on criminal justice data play a role in these determinations?  

The ACLU has wrestled with these questions considerably. We looked to the constitutional principles we fight for in our lawsuits every day, available empirical research, and guidance from our organizational partners and other recognized experts in the field.  We co-hosted a gathering of interdisciplinary experts to explore civil rights concerns algorithmic risk assessment tools.

On Tuesday, the ACLU released, “A New Vision for Pretrial Justice in the United States,” which describes our pretrial policy vision. We envision a country in which pretrial incarceration is all but eliminated, with at least 95 percent of all people in the criminal legal system released no later than 48 hours after arrest. We also demand adequate and robust protections for people going through the system and that for-profit actors be removed from this pretrial space.

More detail is provided in the linked paper and its appendix, but here is a big picture overview of our vision.

Reduce the harms of the pretrial process

Jurisdictions undertaking reform have to meaningfully move away from a “law and order” approach to a humanizing one. For example, when a person has work or family obligations, they should have the right to reschedule a court date without being punished. Moreover, we should evaluate closely what we criminalize, decriminalize widely, and invest instead in community-based alternatives to incarceration.

Eliminate pretrial profiteering

No one should make a living on the backs of people being churned through the criminal legal system. We must completely abolish for-profit bail and for-profit pretrial supervision.

Create a wide net of people eligible for mandatory and presumptive pre-booking release on no conditions

Even a day in jail causes tremendous harm and negates, rather than promotes, the purposes underlying our bail system. And jurisdictions that have adopted pretrial reform are generally left with the subjectivity of judges’ determinations about whom to free and whom to detain. Meanwhile, most people are likely to show up for court and pose no threat to public safety. Given these realities, we have prioritized diverting as many people as possible from jails in the first place.

Facilitate speedy individualized release hearings — distinct from “detention hearings” — with necessary due process protections

If a person is arrested, they should proceed to a hearing within 24 hours at which a judge can only impose conditions on her release, not order them jailed. Given the presumption of innocence and the fundamental right to liberty, everyone will be presumed to be released with no conditions, regardless of what they are accused of. 

Narrowly limit who is jailable before conviction

We cannot continue to assume someone is dangerous and should, therefore, be in jail because they are charged with a serious crime. Detention should be the exception, not the rule. Courts should only be empowered to jail someone awaiting trial in rare cases where a person is accused of an extremely serious charge and the prosecutor files a motion establishing that pretrial jailing should be considered. People then need to receive a hearing, with public defenders available. There can be no shortcuts to this process.

Ensure robust appeal rights and speedy trial protections

A judge’s decision to do anything other than release someone outright should never be absolute. People ordered to stay in jail should be able to appeal their detention, and people released on conditions should be able to ask the court to reconsider those conditions.

Actuarial algorithms should not play a role in pretrial systems

The ACLU has significant concerns about actuarial algorithms’ potentially detrimental racial impact, lack of transparency, and limited predictive value. Not only do these tools not provide the specific, individualized information required to justify limiting a person’s pretrial liberty, but the underlying racial bias presented in criminal justice data points makes it impossible to reconcile how existing tools operate with our vision of justice. 

Eliminate wealth-based discrimination

No one should be deprived of their liberty or subjected to onerous conditions simply because they cannot obtain a sum of money. As is constitutionally required, any time bail or release conditions are considered, courts must undertake a careful examination of the person’s ability to pay any amount. 

This is a critical moment for advocates to capitalize on the momentum surrounding pretrial justice and bail reform. However, it is critical to remain steadfast in our vision as we approach system change. Only through collective investment in all of the necessary components of reform can the United States have a fair and just pretrial system. We believe this better and more humane future is possible and will continue to fight towards this vision.

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Ms. Gloria Anasyrma

This is why you are supposed to obey laws, so you don't get hassled by "the man".

Anonymous

Torture and warrantless wiretapping, by officials, was a felony crime during the early 2000's and Congress never had the authority to pardon those felonies. It's all BS, some people are above the law!

Anonymous

Trust me, you can obey EVERY law, be exceptionally moral, and STILL be hassled (to say the least) by "the man," to the point of having your life turned upside down. A mere arrest is on your record for the rest of you life - so much for being found guilty in a court of law - all it takes is the opinion of ONE cop. Try explaining this to the next person who sees it on your record. It DOES happen. It could be you next time.

Someone’s Grandma

Yes we need help with our Justice Systrm
Starting at the point of arrest. We must be diligent in obeying the law. There should be no get out of jail free cards. Little law breakers beget Big law breakers. Young offenders who cannot afford bail should be monitored with bracelets and have to report to community service if they have no where else to report to (a job). We need to start in the beginning and not at the end. Thanks

Anonymous

A big part of the problem is that the “top managers” of our justice system aren’t educating their subordinates that America has an “Innocent-Until-Proven-Guilty” system and that every official swore an Oath of a Office to that system. One would be hard-pressed to find one cop, prosecutor, federal agent or investigator that actually gives suspects (or the lesser standard “Person of Interest”) that benefit of the doubt. For example: anyone that is unlucky enough to get on a Post-9/11 watchlist has a 99.9% chance of being totally innocent, but officials abuse these Americans with impunity while judges do nothing. If those officers and agents were properly trained and disciplined, by their top managers, to stop practicing the unAmerican style “Guilty-Until-Proven-Innocent” there would far less abuses. They probably wouldn't like it if their children or loved ones were abused like that.

Anonymous

LOCK HER UP . . . LOCK HER UP . . . LOCK HER UP. Justice served.

Erna Auton

One December, I got a call from my 87 year old Mother that had been arrested for a complaint by a neighbor the July before that she had pointed a gun at her. She did not receive any notice of this so there was a warrant for her not appearing in Court. That December night, she had called the Police because someone was lurking around her home. The Lake County Sheriffs came out and saw evidence someone was sneaking around. HOWEVER, when they brought up my Mom's name, a WARRANT came up and they had to arrest my 86 year old MOM. She called me and told me she was being arrested. The Officer was extremely nice and told me where he was taking her to be locked up. He said he thought it was ridiculous, that it was OBVIOUS she had done nothing wrong, but he had no choice. She was in Florida, I was in Michigan. At 11:00 PM, I called a BAIL BONDSMAN in Florida, paid him $500, and he met my Mom at the JAIL. FLORIDA LAW SAID THAT THE BOND WAS KEPT BY THE BAILSMAN, NO MATTER MY MOM'S INNOCENCE. My MOM didn't get to Court until the next JULY! How many POOR PEOPLE out there, that DO NOT HAVE THE MONEY, would have had to have their MOM remain in JAIL all that time, no matter if she was innocent?

Ms. Gloria Anasyrma

I don't see much wrong with the pre-trial system. It's the post trial system I have had the most problems with.

Anonymous

Maybe we could create a Bill of Rights designed to restrain government authority, that could only be changed with a constitutional amendment?

Anonymous

In many states co-habitating (living with the opposite sex) was a crime, even a felony, in some states. If enforced most of us on this site would have been locked up. The 14th Amendment prohibits selective-enforcement. In real practice, most laws are enforced against poor people that can’t afford attorneys or have political connections. Critics should get off their high-horse!

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