There is a lot of discussion in the State Courts about how judges set bail. There are those who passionately argue money bail should be eliminated. There are also skeptics who think that the elimination of cash bail might end with just as many people, or more, held. Pretrial assessments might help. Surely, courage to do what is right might be at the core of any reform effort.
Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; it takes a toll on their families and communities too. Courts simply ignore that serious harm when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. By contrast, unlike the government in criminal cases that can so often obtain the relief that it seeks before trial—incarcerating the defendant—a civil plaintiff faces quite a challenge to get the relief that she seeks before judgment through a preliminary injunction. To do so, a plaintiff must demonstrate irreparable injury, and the court will afford such relief only after balancing the harms that granting or denying would inflict on each side. This disparity between criminal pretrial detention and civil preliminary injunctions is both troubling and enlightening. It is troubling that the law affords more protection to the property interests of civil defendants than the liberty interests of criminal defendants who are purportedly presumed innocent.
But in this historical moment where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pretrial detention. A more civil-like approach to pretrial detention would raise the threshold of government interest necessary to justify detaining the accused to something akin to irreparable injury—not some minimal likelihood that the defendant might forget to appear in court or be arrested for jaywalking. As in the civil system, criminal courts should not simply ignore that a defendant may lose her job, housing, or custody of a child. Rather, courts should consider those costs to defendants, their loved ones, and the broader public and detain defendants only when the benefits of detention outweigh those substantial costs. Lastly, courts should require the government to demonstrate likelihood of success on the merits with evidence subject to refutation by the defendant to detain the defendant. Such additional process would increase costs on the front end, but it could lead to lower costs of pretrial detention, post-trial incarceration, and recidivism caused by criminogenic jails and prisons.