Topic: Presumption of Innocence

Due process has given way to mere process when it comes to criminal justice in the United States. From June 2017 to June 2018, nearly 90 percent of all people charged in federal cases were convicted and sentenced without a trial. National data on state courts, where the majority of criminal cases are filed, reflects the rarity of trials. These statistics are evidence of the criminal legal system’s reliance on often private negotiations, known as plea bargains, which produce guilty pleas and eliminate the need for a trial. Retired U.S. Supreme Court Justice Anthony Kennedy has framed this as the American “system of pleas.” Despite the central role plea bargaining plays in the criminal legal system, the systemic factors surrounding the practice remain obscure. However, a critical examination of the values that drive the system of pleas can provide important insights for those seeking to transform how government institutions respond to harm.

Guilty pleas have become a linchpin of the U.S. criminal legal system. They enable overworked attorneys to chip away more quickly at constantly burgeoning caseloads and enable courts to more easily meet time standards for clearing cases by speeding up dispositions. They may even enable people accused of crimes, many of whom are forced to await the resolution of their cases from jail cells because they cannot afford small bail amounts, to return home more quickly. Plea bargaining is one of the many routines that have become essential to current criminal legal practice. But just because it’s prevalent doesn’t mean it’s positive.

A new report released by the Vera Institute of Justice with support from the Safety and Justice Challenge reviews the complex and inconclusive body of research surrounding plea bargaining. But the private nature of plea bargaining—and the dearth of studies focused on the people who are most impacted by its outcomes—make it difficult to truly understand this cornerstone of the American legal system.

What we do know is that the current system of pleas creates faster dispositions—at times to the detriment of individualized justice. Attorneys and judges make decisions with little contextual information about the person accused or the underlying circumstances of what occurred, partially because plea bargains reduce the need for the more transparent examination of facts that may happen with a trial. And for misdemeanors and other lower level offenses that make up the majority of charges filed, there is frequently little “bargaining” at all. Instead, there are standard “deals” intended to resolve cases—sometimes as early as a person’s first court appearance. What often results are speedy determinations that have less to do with the complex needs of the people involved and are more associated with local caseloads and crime rates, a person’s previous contact with the legal system, and the initial charging decision. Additionally, coercive factors, including being incarcerated pretrial and the fear of a harsher sentence should one lose at trial, can drive a person to plead guilty. Specifically, pretrial incarceration, which is rife with racial, economic, and gender inequities, increases a person’s likelihood of pleading guilty by 46 percent. As a result, pretrial incarceration and the system of pleas simultaneously contribute to the increased marginalization of already marginalized people by making them more likely to add convictions to a criminal record.

The lack of transparency in the process further diminishes the legitimacy of the criminal legal system. Before offering a plea deal, prosecutors can and, at times, do consult those who have been harmed. However, what the prosecution ultimately decides after these private negotiations is almost completely up to them. Without transparency and accountability, people are more likely to feel disconnected from the processes they are told to rely on for justice and safety. It should come as little surprise then that surveys of crime survivors indicate significant dissatisfaction with the current criminal legal process and the remedies it may offer.

The predominance of guilty pleas provides an important lesson as practitioners and advocates continue to think about creating new systems for justice and improving the current one. Any strategy that maximizes the public good while minimizing the resources required to do so will be attractive. But when it comes to justice, the “public good” cannot be simply reduced to the number of cases resolved. A system that obtains a high number of convictions but does not promote healing should not be considered efficient.

Instead, we need notions of efficiency that reflect our values. This requires being explicit about the principles driving decision making while constantly checking for alignment between those principles and the routines that emerge in implementation. For those concerned with promoting safety, healing, and accountability, this does not mean counting the number of people who are processed through a system. It means measuring how effective the processes, practices, and institutions that constitute a system are at empowering communities, both to prevent harm and to facilitate healing when harm occurs. Under this framework, plea bargaining may prove to be much more costly than its ubiquity suggests.

Those of us on different sides of the political spectrum can disagree on plenty of issues, but we can all agree that more must be done to uphold equal access to justice as enshrined in the U.S. Constitution.

Justice for all is a core value of the John D. and Catherine T. MacArthur Foundation’s Safety + Justice Challenge. And it’s achievable. We should start with the pretrial system, moving from the current approach largely based on ability to pay to a system focused on public safety and due process.

Having more money in a free market economic system should mean you can buy a bigger television or a nicer house, but it shouldn’t grant you better access to justice. A pretrial system based on wealth combines with other disparities—such as the ability to obtain qualified defense counsel—to undermine equal access to justice.

In Tarrant County, which is the area around Fort Worth in Texas, for example, some 9,000 low risk-assessed defendants languished in jail for a year or more before trial because they couldn’t afford bail set at $2,000. That is to say, they couldn’t find $200 to pay a bail bondsman.

In practice, pretrial liberty is not the norm, despite both the Constitution and Supreme Court precedent demanding that pretrial detention be a “carefully limited exception.” Rural areas, not urbanized ones, have been driving much of this growth in pretrial incarceration.

This could be because of fewer judges and lawyers to process cases in small towns, economic incentives to build unnecessary jail capacity, and the opioid epidemic. Possible solutions include reducing jailable offenses, expanding police diversion, using validated risk-assessments to identify those who can be safely released following arrest, and revising state bail laws.

I recently discussed these topics in a conversation that covered bail reform and other pretrial justice issues in the context of COVID-19, as well as in the aftermath of the death of George Floyd. The panel, which was part of the 2020 Smart on Crime Innovations conference, featured diverse perspectives, including those of Cherise Fanno Burdeen of the Pretrial Justice Institute, Kristie Puckett-Williams of the North Carolina ACLU, and Terry Schuster of the Pew Charitable Trusts.

These discussions come at a highly polarized time, when some question whether local and state governments can afford reforms. Having worked on criminal justice policy in Texas since 2005—when reform was not even on the radar screen—and spearheaded the launch of Right on Crime in 2010, I know the importance of sustainable models, such as Texas’ landmark 2007 justice reinvestment package. This approach redirected some of the funds that would have been used to build new prisons to strengthening alternatives such as drug courts and mental health treatment, along with programming behind bars and increasing the number of halfway house beds. From 2007 to today, the state’s incarceration rate has fallen from 641 to 423 per 100,000 people. Most importantly, the crime rate has fallen 40 percent, exceeding the national decline.

Texas’ success was widely cited as an impetus for the federal First Step Act in 2018. That in turn created momentum for a second wave of state reforms. North Carolina’s governor just signed the state’s unanimously passed First Step Act, which like the federal version includes dialing back mandatory minimum drug sentences and increasing incentives for time off prison terms through completion of recidivism reduction programs.

Similarly, the Pennsylvania’s State Senate unanimously passed a probation reform bill in July that uses research to inform the length of supervision and allows those with exemplary performance to end supervision early.

And earlier this year, Louisiana passed a raft of reforms, while Tennessee reined in its sweeping drug-free school zone enhancement law, which is projected to save $18 million. Penalties will rightfully remain tougher for those who sell drugs to kids, but no longer will a motorist nearby face many more years in prison for simple drug possession.

While these efforts have bridged the political divide, those of us on the right must continue to emphasize how such reforms adhere to traditional principles of personal responsibility, limited government, and public safety. It is an opportunity to make the public safer while spending less money in the process. It is also a chance to humanely address challenges such as mental illness and addiction that cross all ideological lines.

Ultimately, criminal justice is different from other issues because the debate is not about whether government should be involved. It must be involved—delivering public safety and justice is one of the few core functions of government. Just as pretrial decisions should not vary based on whether one is rich or poor, every community is entitled to a justice system that not only holds individuals accountable, but is also held accountable for its outcomes.

This means applying the same lens of scrutiny to the criminal justice system as every other government system. Examples of this have included legislation requiring data reporting and performance measures. As policymakers face declining revenues and a public health crisis, our efforts to maximize the use of limited resources to create a fairer and more effective justice system have never been more urgent.

—Marc Levin is Chief of Policy and Innovation at Right on Crime, an initiative of the Texas Public Policy Foundation in partnership with the American Conservative Union and Prison Fellowship.

In America, we tell ourselves, those merely accused of crimes are presumed innocent, while those convicted of crimes may be sent to jail or prison.

But in reality, we treat most people in this country who are accused of crimes exactly the same as those who have been convicted: they are detained in jail and cut off from family, work, and legal counsel. How did this come about, and how can the ideal and reality be reconciled? That’s the question we posed in “The ‘Radical’ Notion of the Presumption of Innocence.”

The paper was written as part of Columbia University’s Square One Project and can be found in full here.

In it, we argue that pretrial detention in America has come unmoored from its constitutional and historical foundations and become a threat to the due process rights of Americans accused of committing crimes—especially misdemeanor crimes.

We put the word “radical” in scare quotes to connote irony: the presumption of innocence, a bedrock principle of English and American criminal law, today has been rendered toothless. Historically, this presumption wasn’t just an abstract ideal; it afforded meaningful protections to the accused. Almost every state in the country, by constitution or statute, recognizes that defendants have a presumption to pretrial release under bail conditions that are no more onerous than required to ensure the defendant’s return.

But starting in the 1980s, as part of the tough-on-crime “revolution,” changes to federal law made it easier for judges to remand accused but un-convicted persons (or set their bail at an impossibly high amount, which amounts to the same thing) based on a finding of “danger to the community.“

States soon followed suit. Studies show that now, in the federal system and in some jurisdictions, 80 percent or more of un-convicted accused are detained for days, weeks, or even months before their cases are resolved. Detentions often take place on the basis of rushed bail hearings, the most industrialized feature of America’s assembly-line approach to criminal justice. In most cases, defendants don’t even have the right to be represented by counsel and have just two or three minutes to argue for their freedom.

There is no doubt that defendants are prejudiced by pretrial detention. Persons in jail have little practical opportunity to assist their attorneys in preparing a case for trial. Even a relatively short stay in jail can cause loss of a job or housing, reducing defendants’ ability to marshal the resources needed to go to trial. The desperation jailed defendants feel causes many to plead guilty, even when the state’s evidence is weak. Prosecutors are well aware of this leverage, which is why they almost always seek no or excessive bail. This practice is especially damaging to misdemeanor defendants who often spend more time in jail before trial than they ever would if they went to trial and were found guilty.

This reality grounds our statement that pretrial processes that are supposed to serve the presumption of innocence instead have come to resemble findings of guilt. Deprivation of freedom is the most serious criminal sanction our nation imposes, short of the death penalty. Pre-trial detainees are not people who have been duly sentenced to this punishment. Indeed, they are supposedly protected by a legal presumption that, we like to tell ourselves, can only be overcome by overwhelming evidence that establishes guilt beyond a reasonable doubt.

Yet the accused are routinely treated exactly the same as those who have been convicted. Pre-trial detention is so common that more than two-thirds of the 746,000 people held in jails in America are pretrial detainees. Essentially, we have turned jails into massive pre-trial detention centers, to which people are sentenced on almost no evidence and with little process, to watch their lives be destroyed as their attorneys work out pleas that will often send them home almost immediately.

We impose this miscarriage of justice on defendants who have been accused of both violent crimes and non-violent petty offenses, because of a finding that someone is “dangerous.” But this finding usually occurs after a two- or three-minute bail hearing, often without opposing counsel, frequently without any meaningful assessment of risk. The rich make bail and the poor are remanded because they can’t pay trivial amounts of money. Is there any universe in which this process serves the presumption of innocence?

There is little evidence this system makes the community safer. In fact, there is evidence that pretrial detention is criminogenic—actually increases crime. One study found that after only two or three days in detention, individuals deemed to be “low-risk” were about 40 percent more likely to commit a crime upon release when compared to other low-risk individuals who were detained for 24 hours or less. This finding makes sense: homelessness, joblessness, strained family relationships, are factors that increase the likelihood of crime. They are all also obvious outcomes of even a short stint in jail. A practice designed to make the community safer likely increases crime while destroying lives to boot.

Widespread pretrial detention is especially unsupportable today when there are mechanisms to monitor and restrain those persons who really do those who present a threat. Near-perfect GPS tracking—either through bracelets or cell phone monitoring—are useful and effective tools to address concerns about danger to the community. These programs have been shown to work in localities that have reformed bail laws to decrease the number of pretrial detainees.

The fact that something is common does not make it just, effective, or wise. We can imagine a better criminal justice system. Reforming America’s broken pretrial detention system would be a major step forward. The irony is that this would not be a bold or unprecedented reform. It would simply be a return to the foundational American principle that people accused of crimes are presumed innocent and that the state’s burden in attempting to deprive citizens of their liberty is a heavy one. “Radical,” indeed.

—Arthur Rizer is the director of criminal justice and civil liberties at the R Street Institute. Arthur is also an adjunct professor of law at George Mason University’s Antonin Scalia Law School.

—Tracey Meares is the Walton Hale Hamilton Professor at Yale Law School and the founding director of the Justice Collaboratory.