October 4, 2021 | Reading Time: 4 minutes

The state of our bail system is so corrupt you don’t need to be convicted to lose your rights — or face a death sentence

How can we claim people are innocent until proven guilty?

Image courtesy of Getty.
Image courtesy of Getty.

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Since January, a dozen people have died while awaiting trial at Rikers prison in New York City. There has been a 27 percent increase in violent incidents compared to last year. Fifteen people have died at Harris County jail in Texas over three months, according to activists. A Reuters investigation found that between 2008 and 2019 nearly 5,000 people died inside jails nationwide. None were convicted. Reporters found a 35 percent rise in inmate deaths even before the covid pandemic ravaged overcrowded prisons. The current state of our bail system means that you don’t need to be convicted of a crime to lose your rights — or face a death sentence. How can we claim people are innocent until proven guilty if they face jail time without trial?

There are typically around half a million people held in jail awaiting trial at any given time. These are people who have not been convicted of any charge but are awaiting trial. Holding people in jail, particularly for minor and non-violent offenses, amounts to punishing people who have not been convicted of a crime. Considering the state of our jails, people typically face violence, solitary confinement and a denial of rights without the full due process of law. Technically, those held while awaiting trial have the benefit of a bail hearing. But the imposition of pre-trial detention is arbitrary and often based on the whims of individual judges. The process creates a different judicial system for those without money, as the vast majority of people in custody awaiting trial are there because they can’t afford bail. 


Covid has shown how dangerous pre-trial detention is but the pandemic didn’t create the crisis. People are being held for months, or years, without being convicted of a crime


Theoretically, those held in pretrial detention are being kept in custody to guarantee they appear in court. However, because they are treated as prisoners, though presumptively innocent, their rights are heavily curtailed. It is long accepted law that those who have been convicted of a crime do not have full access to their full rights. Pre-trial detention applies this standard to those who have just been charged with a crime, in practice if not legally, as long as the treatment of pre-trial detainees is not being imposed out of “punishment.”

In 1979’s Bell v. Wolfish, the United States Supreme Court created this “punishment” test. It held that restrictions on pre-trial detainees are unconstitutional only if they concern an independent constitutional right or qualify as a punishment. Practices reasonably related to managing a detention facility were not considered punishments. Prohibitions on contact visits, cavity searches or shared occupancy in a cell only meant for one were therefore constitutional for pre-trial detainees who had not yet been convicted of any crime. 

The standard for considering restrictions on the rights of pre-trial detainees? If they were intended to punish or if they were reasonable practice for maintaining a facility. Courts tend to side with correction departments when determining such cases. A 2015 Supreme Court case, Kingsley v. Hendrickson, ruled that those in pre-trial detention have a lower burden for proving excessive force than someone who had been convicted of a crime and was serving out their sentence. However, implied in the case was that those held awaiting trial would be subject to “reasonable” force to keep them in line in jail. 

Restrictions on contact visits are particularly violating when one considers that women are less likely to be able to afford bail and more likely to be held in custody while awaiting trial. Sixty-six percent of women in pre-trial detention have minor children. Without bail, a single mother without a safety net faces the involvement of the state’s family court system and the possibility of her children being placed in foster care. Yet according to the standard the courts use to determine the treatment of pretrial detainees, losing contact with one’s children, and possibly losing them permanently to the state, is not “punishment” or a violation of that presumptively innocent person’s full rights.


Restrictions on contact visits are particularly violating when one considers that women are less likely to be able to afford bail and more likely to be held in custody while awaiting trial. 


Before the pandemic, there was some interest in bail reform. New York state passed a bail reform bill in 2019 and amended it in April 2020. It went into effect July 1 that year. The reform’s initial intent was to dramatically decrease the number of people incarcerated awaiting trial by changing the process of imposing cash bail. The bill was expected to eliminate cash bail for up to 90 percent of arrests, but the April 2020 revisions expanded the qualifying cash bail cases. By expanding the types of cases eligible for cash bail, more people are held in pretrial detention unable to afford bail. The current law still prohibits cash bail for most misdemeanors and non-violent felonies. The expanded list of charges where cash bail is permitted has left bail mostly under the discretion of the individual judge. However, amending the original law prevented the needed dramatic decrease in pretrial detainees during the pandemic. Bail reform was also an issue in the 2020 Democratic primary with many candidates calling for ending or reforming cash bail. Unfortunately, federal action has stalled.

Despite calls to reduce prison populations during the pandemic, little has been done to protect prisoners, convicted or awaiting trial. In the first 13 months of the pandemic, 31,000 federal prisoners sought compassionate release. The Bureau of Prisons released 36. By June 2021, half a million had contracted covid. At the end of 2020 an estimated one in five prisoners had covid. In some states responses to the pandemic, like postponing trials, kept people jailed longer. Texas prison authorities tried reducing the population by releasing medically vulnerable inmates but Governor Greg Abbott limited their authority. In Alabama, rather than reducing the overall population, lawmakers intend to use covid relief funds to build new prisons, claiming this will lessen overcrowding and reduce the spread of the disease.

Covid has shown how dangerous pre-trial detention is but the pandemic didn’t create the crisis. People are being held for months, or years, without being convicted of a crime. They have little recourse to remedy their situations. The pressure of pre-trial detention increases the likelihood a person will plead guilty. Pre-trial detention is a classist denial of constitutional rights but it also costs the government 13.6 billion a year. We must see detention is itself punishment and encourage judges to explore other avenues of guaranteeing a person shows up for trial. Investing in ankle monitoring devices would save the government money and better protect the rights of the accused.


Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

1 Comment

  1. Rusty Austin on October 9, 2021 at 1:43 pm

    Sadly, it’s never going to change in my lifetime. I once spent the day in jail in the mental ward for a $5 fine. $5. Bail was $33 and all I had was $15. The cops put me in the mental ward for some kind of sadistic pleasure.

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