Punishing Poverty: How Bail And Pretrial Detention Fuel Inequalities In The Criminal Justice System

Authors: Christine S. Scott-Hayward & Henry F. Fradella
Publisher: Oakland, CA: University of California Press, 2019. 309p.
Reviewer: James C. Oleson | August 2021

American exceptionalism—the claim that the United States of America is inherently different from (and usually superior to) other nations—remains a staple construct of political science. But there is another kind of exceptionalism at work in America, as well: a criminal justice exceptionalism.

I did not, myself, fully appreciate the astonishing disparities between the criminal justice systems of the US and other western industrialized nations until I moved from Washington DC to Auckland, New Zealand in 2010.

I suppose I knew, but did not understand, that law enforcement in the US is unusually militarized; that rates of lethal police shootings are unparalleled; that half of its 50 states retain the death penalty, while only 3 of 37 OECD nations do so (Japan, Korea, and the US); and that it incarcerates its adults at a rate that is five-to-ten times that of other western countries, using solitary confinement for periods far beyond what most countries allow. Sentences are long: one in seven US prisoners is serving life. But US prison populations are a small part of a much larger penal exceptionalism. While there were about 2.3 million people incarcerated in 2020, there were another 4.5 million on probation and parole, putting the number of people under correctional control at about 6.7 million. In 2014, I suggested that many US criminal justice practitioners do not appreciate just what an outlier the US is in terms of incarceration rates:

Jails and prisons in the United States house a collective 2.3 million inmates, representing an astonishing imprisonment rate of 743 per 100,000 Americans. … [T]he U.S. rate exceeds the rate of the top 35 European countries combined. Also disturbing is the pronounced racial imbalance in American prisons. For white men between the ages of 18 and 64, 1 in 87 is incarcerated; for Hispanics, the rate is 1 in 16; yet for black men, the rate is 1 in 12. It is an unflattering and worrying portrait of American penal exceptionalism. … Although three-year recidivism rates average 68 percent in state jurisdictions, we continue to construct new prison facilities, ignoring the inconvenient truth that prisons do not actually appear to prevent crime (JC Oleson, A Decoupled System: Federal Criminal Justice and the Limits of Structural Transformation, Justice System Journal, 34(4), p. 385, internal citations omitted).

Yes, there is a vague awareness that US incarceration rates began to accelerate after 1980; and yes, many have heard the assertion that the US, with 5% of the world’s population, incarcerates 25% of its prisoners. But even more sobering than the roughly 1.5 million people in US state and federal prisons is its jail population. The official population count—734,500—is a one-day snapshot; in reality, according to the Bureau of Justice Statistics, US jails logged more than 10 million bookings in 2019. While some of these people have been convicted and are serving short (<1 year) sentences, most of them have not been convicted and, ostensibly, enjoy the presumption of innocence. Their real crime is being incapable of posting a bond for money bail—being poor—another unflattering example of American penal exceptionalism. The only other country to operate a commercialized system of money bail is the Philippines.

And this is why Christine S. Scott-Hayward and Henry F. Fradella’s 2019 book, Punishing Poverty: How Bail and Pretrial Detention Fuel Inequalities in the Criminal Justice System, is so important and so timely. This book has the potential to guide policymakers and legislators as the intensifying call for bail reform and pretrial justice leads municipalities and states to identify alternatives to commercial bail.

This 300-page book is clearly written and structured elegantly across five chapters. Chapter one provides a primer on bail in the US, tracing its origins and history within the common law tradition. The chapter follows the evolution of the Anglo-Saxon concept of borb (surety) through the Norman conquest and the Statute of Westminster, and outlines US jurisprudence on the subject. This includes the important question of whether the Eighth Amendment’s excessive bail clause applies to the states, and pays particular attention to the Bail Reform Act of 1966 and the Bail Reform Act of 1984. This chapter provides the reader with a succinct historical and legal framework to understand the current controversies within the realm of pretrial detention.

Chapter two reviews pretrial release decisions and outcomes. The authors describe the operation of bail hearings and examine the types of legal (e.g., charged offense) and extra-legal (e.g., race, gender, and ethnicity) factors that are considered when deciding whether to release a defendant on recognizance (ROR), impose a bond (cash, property, or bail), or to detain the defendant before trial. The chapter examines bail schedules—lists of offenses with presumptive bail amounts—in some detail and concludes that bail schedules not only fail to allow for individualized determination, but therefore violate the Eighth and Fourteenth Amendment. The chapter also critically examines the US commercial bail system, noting that “by setting monetary bail at amounts higher than most defendants can pay, judges are both forcing defendants to turn to for-profit bail companies and effectively detaining many people who likely do not pose any risk” (p. 76). As alternatives, the authors examine community bail funds and pretrial supervision options.

Chapter three, written with Megan Verhagen, identifies the controversies associated with risk-assessment-based bail determinations. The authors describe the history, use, and implementation of pretrial risk assessment instruments. They do an admirable job of describing, briefly and clearly, the evolution of actuarial risk tools from first to fourth generation. They identify a number of pretrial risk assessment instruments, including COMPAS, tools from DC, Ohio, and Virginia, and the Laura and John Arnold Foundation’s Public Safety Assessment (PSA). Although risk instruments have been used in criminal justice for a century, they have more recently become especially controversial and politicized. In 2014, as part of his remarks for the 57th annual meeting of the National Association of Criminal Defense Lawyers, then-Attorney General Eric Holder warned against the dangers of allowing statistics to drive criminal justice decisions:

Legislators have introduced the concept of ‘risk assessments’ that seek to assign a probability to an individual’s likelihood of committing future crimes and, based on those risk assessments, make sentencing determinations. . . . By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society. Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant’s history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.

Although Holder was critiquing postconviction risk tools, his concerns apply with equal or greater force in the pretrial context, where defendants enjoy the presumption of innocence. Scott-Hayward, Fradella, and Verhagen do a commendable job of reviewing the shortcomings of pretrial risk tools, with a discussion of bias that is simultaneously sophisticated and clear. They observe that risk algorithms predict offending by using historical data, which are themselves the product of generations of racism, sexism, classism, and oppression. But although there are technical questions at work in the debates over actuarial justice, the real debates turn on questions of fairness. Given that there are competing, incommensurate, definitions of fairness, many of which rest in tension with predictive accuracy, the question about whether (and how) to use actuarial data in pretrial detention decisions depends on the version of fairness we hope to achieve. Ultimately, the authors are aware of the limitations of actuarial risk assessments, but they reject the call to abandon risk assessment altogether. Rather, they argue that risk instruments have the potential to improve pretrial decision making, especially when compared to the alternatives. The authors’ last point bears emphasizing: many of the critiques of pretrial risk assessment are not actually critiques of risk measures or algorithms per se, but of the types of information that are used, or about the discriminatory processes that collapse human experience into a data point. But the same kind of problematic information is included, uncontroversially, in analog pretrial release/detention decisions every day: “the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings” (18 U.S.C. § 3142(g)).

Chapter four briefly describes the impact of pretrial detention. It notes that the most immediate consequence of pretrial detention is a loss of liberty, for periods that might be measured in days, but that can stretch into months or even years. And because pretrial jail detention facilities are often crowded unruly places, with limited health care, educational, or vocational opportunities; periods of detention can be difficult. But detention before trial also has other material effects on criminal justice outcomes. Detention is associated with a greater likelihood of conviction, greater likelihood of a jail or prison term (rather than probation), and longer sentence length. In their 2014 article, “Bail and Sentencing: Does Pretrial Detention Lead to Harsher Punishment?” Megan Sacks and Alissa R. Ackerman said it best when they wrote, “Pretrial decisions determine mostly everything … early decisions may be the most influential ones” (p. 72). Defendants who are detained face hardships in terms of income, employment, and public benefits. Because detention is a function of the inability to post bail, the poor and ethnic minorities are detained disproportionally. Defendants who were already economically marginalized are detained and fall into poverty. But even defendants who successfully post bail will bear the non-refundable financial costs of their bond.

Finally, chapter five outlines “the path forward” (p. 152). In this final chapter, the authors build upon eight recommendations drawn from the website of the Pretrial Justice Institute:

  • Increased use of citation in lieu of arrest
  • Elimination of bond schedules
  • Screening of criminal cases by an experienced prosecutor
  • Presence of defense counsel at initial appearance
  • Use of pretrial risk assessment
  • Expanded use of pretrial supervision and monitoring
  • Availability of detention with due process
  • Collection and analysis of performance measures

Several of these initiatives are addressed in previous chapters (e.g., bond schedules are discussed in chapter one, pretrial risk assessment is discussed in chapter three, and expanded pretrial supervision and monitoring is discussed in chapter two), but the other recommendations are thoughtfully evaluated in this concluding chapter. Although no state has fully embraced all of the pretrial recommendations, a number of jurisdictions have introduced bail reform measures. However, as the authors emphasize, “bail reform is not simple” (p. 193). Many of the recommended initiatives would change the nature of pretrial work and increase pretrial criminal justice costs; but given the correlation between pretrial detention and negative sentencing effects, front-end investment in pretrial diversion might very well yield fiscal benefits through reductions in jail and prison populations.

Punishing Poverty: How Bail and Pretrial Detention Fuel Inequalities in the Criminal Justice System is an important book that draws on historical, legal, and criminological threads to demonstrate how bail reproduces inequalities of class and ethnicity within the US criminal justice system. It provides readers with the first book-length diagnosis of this problem—a problem that is growing worse rather than getting better: the Vera Institute notes that pretrial detention has increased 433% between 1970 and 2015. But Scott-Hayward and Fradella also provide readers with a prescription: a raft of practical changes that can be made to the system in order to make criminal justice more fair, more humane, and more efficient. It is a book clear enough to be read by general audiences, detailed enough to be used by graduate students in criminology and law, and comprehensive enough to be a resource to academic scholars. But it is also a book that should be studied by practitioners—judges, magistrates, prosecutors, defense counsel, and probation and pretrial services officers—as well as policy makers such as legislators, agency heads, budget officers, and criminal justice policy wonks. All could learn, could understand, just how exceptional the US bail system is, and could draw upon this wealth of knowledge in implementing meaningful reform.

James C. Oleson, University of Auckland

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