Understanding Detention Before a Criminal Trial
According to the Bureau of Justice Statistics, 664,200 people are incarcerated in jails across the US as of midyear 2023. Seventy percent of the jail population are still not convicted, covering people waiting for court action on a current charge and people held for other reasons. Between July 2022 and June 2023, local jails recorded 7.6 million admissions. That figure counts admissions and not individual people, since one person can be admitted more than once.
Pretrial detention is inherently conflicting. It defies the foundation of the justice system, as the defendant is deemed innocent. A judge may rule that an individual remain in detention as the situation deems fit. It’s important to understand how the courts decide, as it shapes job stability for the person and can also influence how a case turns out.
What Pretrial Detention Actually Means
An arrestee’s first opportunity to see a judge is usually short. During this time, a judge will decide if an arrestee can return home prior to their trial. Some conditions may apply.
Conditions for release vary. Release on a simple promise to return is one common option. There are some defendants who may need to have cash bail set, meet with pretrial staff regularly, be fitted with electronic monitoring equipment, turn over their passport, or abide by stay-away orders.
According to the VRBA Law criminal defense website https://www.vrbalaw.com/, an arrest for assault often includes an Emergency Protective Order (EPO). An EPO is a court order restricting where a defendant may go and whom the defendant may contact, including a required distance from certain people. Violating any part of the EPO constitutes another crime. Even texting a protected person would be a violation of an EPO. When no combination of these conditions makes a return to court likely, the arrestee remains in custody.
How Courts Make the Decision
Two questions drive most release decisions. The first asks whether the person will come back to court. The second is the safety factor. Will the person be a risk to either the public or an individual if released?
In assessing risk, judges look at the charge itself. Judges assess the strength of the evidence, the record of missed court dates, and the extent of community ties, including employment and length of residence. They also look at the criminal history of the arrestee. Judges are using pre-release risk assessments more and more, with varying significance.
In most cases, the defense lawyer does not have much time to prepare before the court hears the bail/release motion. Many defense firms do this type of work on misdemeanor and felony charges.
Money Bail and the Alternatives
For decades, money bail served as the default release tool in most of the country. In that setup, a judge set a dollar figure. If the defendant paid that amount, either alone or with help from a bail bonds firm, they were able to go home. If they could not pay, they stayed in jail. This outcome happened even when the case involved a minor charge.
Over time, many critics pointed to problems. Some states changed course. Illinois ended cash bail in September 2023. It switched to a model where prosecutors have to request detention. Other states did not fully drop money bail. Instead, they added risk screening, allowed more releases without payment, or set up new detention rules for certain types of charges.
The direction of change is not uniform. Florida’s pretrial detention law changes took effect in January 2024 and limit non-monetary release at first appearance for people accused of offenses the state classifies as dangerous crimes.
The Federal Model
Federal courts follow a consistent method. That method influenced many parts of the national debate.
The landmark Supreme Court case United States v. Salerno, decided in 1987, upheld the Bail Reform Act of 1984. Under the Bail Reform Act, a federal court may order detention before trial when the government shows by clear and convincing evidence, after an adversary hearing, that no release conditions will reasonably assure the safety of any other person and the community.
Challenges claiming the law was unconstitutional on its face under the Due Process Clause and the Excessive Bail Clause also failed. The Court found the statute’s own provisions answered those concerns.
The detention hearing is a full adversary proceeding in which the accused can contest the government’s case. The accused has the right to counsel, to testify, to present witnesses and proffer evidence, and to cross-examine the government’s witnesses.
The Salerno case still did not answer every issue tied to pretrial detention. State courts and state systems have their own constitutions and laws. Still, the case made one point clear. Detention based on dangerousness can fit with the presumption of innocence, as long as the procedures are in place.
Why the Early Days Matter
The fallout from detention goes past the jail doors. The impact of time spent incarcerated does not stop there but extends to much larger issues outside the facility walls. Not every jail admission involves a person awaiting trial, but BJS still offers a useful benchmark. Across all admissions to local jails, the average time in custody before release was 32 days.
Being incarcerated changes how a person prepares for a case. For one, being behind bars can disrupt the collection of necessary evidence. A person also has a hard time communicating with a lawyer and even more so a witness. The pressure to quickly settle the case increases as more time passes in jail.
Also read: Bridging the Gap Between Classroom Coding and Industry Expectations
Pretrial rules will likely keep changing. States will keep trying new methods and then checking the results. For people watching this issue, the main question does not really change. A system that presumes innocence must decide who can wait for trial at home and who must wait in jail.
