Introduction
The sustained mass incarceration of people in the United States has prompted a rich and growing body of research that focuses on the experiences of incarcerated individuals (e.g., Garland, 2001b; Clear, 2007; Pettit, 2012; Gottschalk, 2019). The majority of this work centers on the experiences of people housed in state prisons with much less research focusing on the experiences of people incarcerated in local jails. Even less research has examined the experiences of individuals in pretrial detention (Irwin, 1985; Euvrard & Leclerc, 2017; Cochran & Toman, 2018; Kimbrell, 2019; Pelvin, 2019).
This gap in the literature stands out in part because pretrial detention is a major driver of jail incarceration. It also stands out because of the controversy surrounding the use of pretrial detention. There are several reasons for this controversy, one of which is the fact that it involves incarcerating people who are not convicted of a crime. Another is the possibility that pretrial detention might expose people to the pains inherent to the punishment of incarceration, despite the state having not yet found the person guilty and thus not on legal grounds to impose punishment (see, generally, Irwin, 1985; Csete, 2010; Euvrard & Leclerc, 2017; Pelvin, 2019; Scott-Hayward & Fradella, 2019; Goulette & Wooldredge, 2019; Peterson, 2020). Most prior studies have focused on the collateral consequences of pretrial detention, which include increases in the likelihood of a guilty plea, conviction, and tougher sentencing outcomes (Goldkamp, 1979; Gottfredson & Gottfredson, 1988; Spohn, 2009; Appleman, 2012; Ulmer, 2012; Baumer, 2013; Bushway & Frost, 2013; Kutateladze et al., 2014; Sacks & Ackerman, 2014; Wooldredge et al., 2015; Oleson et al., 2016; Lee, 2018). Such outcomes may in turn explain some of the social, psychological, and economic consequences of pretrial detention (e.g., Dobbie, Goldin, & Yang, 2018; Holsinger & Holsinger, 2018; Goulette & Wooldredge, 2019). Examples of these consequences include wrongful conviction, unemployment, debt, and even suicide (Rabinowitz, 2010; Dobbie, Goldin, & Yang, 2018; Natapoff, 2018; Leslie & Pope, 2017).
There has been much less empirical attention, however, given to the day-to-day experiences that take place inside the jail. Indeed, the actual micro-experiences during a pretrial stay may be considerably heterogeneousâvarying across defendants and places. Theory suggests that these experiences can then cause harm to individuals, families, and communities, and variation in these experiences likely explains some variation in the harms that result from pretrial detention (e.g., Feeley, 1979; Kohler-Hausmann, 2018; Natapoff, 2018). Such experiences may cause even more harm than other types of jail stays, both because it is a time of uncertainty and because fewer jail resources may be allocated to the pretrial population (Harvey, 2007; Appleman, 2012). These experiences also may be disproportionately felt by the most disadvantaged individuals in society; most of the individuals in pretrial detention are those who cannot afford to post bail, despite being assigned it (Reaves, 2013). In effect, this produces a large population of poor individuals who experience jail incarceration, without a conviction, and then in turn experience the collateral consequences that stem from it (Pelvin, 2019).
The pathways of adverse jail and pretrial incarceration experiences may play out much like those theorized in the prison literature. Indeed, pathways of adverse jail experiences could include, among others, an inability to access social capital and manage personal or financial affairs (e.g., Rose & Clear, 1998; Liu et al., 2016), jail life as a school of crime (e.g., Clemmer, 1940; Vieraitis, Kovandzic, & Marvell, 2007), exposure to trauma (e.g., Dudeck et al., 2011; Armour, 2012; Schnittker, 2014), and reduced perceptions of legitimacy among incarcerated individuals (e.g., Tyler, 1990; Beijersbergen, Dirkzwager, & Nieuwbeerta, 2016; Ryo, 2017). Irwinâs (1985) classic ethnography of a large, urban jail provides initial insights into these parallels. What is needed to build on this work is a systematic examination of the regularity and nature of jail and pretrial detention experiences. A clearer understanding of these experiences and of their theoretical impacts will further evaluate pretrial detention as a court and correctional policy.
The purpose of this chapter is to argue for research that examines systematically who is detained pretrial and what happens to them during their detention. In doing so, we draw upon Irwinâs theoretical framework and other conceptualizations of the pains of incarceration (e.g., Sykes, 1958). We argue that such research is important not only for evaluating policy surrounding pretrial detention, but also for advancing knowledge about the fairness, effectiveness, and practical implications of key decision points in the justice system. Studying pretrial detention, like any other discretion point, requires considering the incentives, biases, and other social forces that shape stakeholder decisions. It also requires examining how this decision-making shapes the experiences, health, and safety of incarcerated individuals.
To this end, the chapter is structured as follows. First, we review existing theory and research on pretrial detention. Second, we propose a research strategy that focuses on examining the types of individuals held pretrial. Focusing first on the characteristics of people held pretrial is important context for then understanding their experiences and any potential consequences. In this section, we use nationally representative data from the Bureau of Justice Statisticsâ National Inmate Survey, 2011â2012 to provide a descriptive analysis of who is held pretrial in the United States. Third, we argue that a largely overlooked yet critical aspect of the pretrial detention literature is the experiences individuals have during their incarceration. This argument is informed by the same survey data, which captures the self-reported experiences of individuals in pretrial detention. Fourth, we conclude with a discussion of the broader implications of this research for advancing knowledge on jail incarceration and pretrial detention experiences. Fifth, we provide recommendations for future research.
Pretrial Detention
Throughout most of the 20th century, pretrial detention, as well as incarceration more broadly, was uncommon. For example, in 1970, fewer than 100,000 individuals were held pretrial on any given day (Digard & Swavola, 2019). However, shifts in the use of bail and the broader sentencing changes that started in the 1970s contributed to steep increases in the use of incarceration. These changes translated to a stark increase in the use of pretrial detention. Indeed, the majority of people housed in local jailsâapproximately two-thirds of the jail population (Zeng, 2020)âhave not yet been convicted of a crime. According to contemporary estimates, roughly 400,000 individuals are held in pretrial detention (Digard & Swavola, 2019).
This trend is in line with the broader âtougheningâ of punishment and surveillance that started in the 1970s (Garland, 2001a; Gottschalk, 2019). It also stems from the shifting purpose of pretrial detention. Roughly one in ten detained defendants are given âpreventative detentionâ or denied bail entirely because they are believed to be a threat to the community (Reaves, 2013). However, the majority of individuals in pretrialâapproximately 90 percentâare not held because they are considered a threat to the community, but because they cannot meet the conditions of their release, which is typically some type of monetary obligation (Reaves, 2013).
The use of pretrial detention has evolved in recent decades in part because of changes in the use and scope of bail and conditional release. In the 1800s, bail, not pretrial detention, was the primary tool to coerce court appearance (Duker, 1977; Scott-Hayward & Fradella, 2019). In the 1835 Supreme Court decision, Ex Parte Milburn, it was decided that bail was not intended to punish, but for âcompelling the party to submit to trialâ (Ex Parte Milburn, 1835, p. 710). During this time, pretrial detention did not serve the purpose of protecting the community or have a utilitarian function related to crime control. However, a shift began in the mid-1900s, when the Supreme Court addressed the question of whether defendants have a right to bail. In the 1943 case People ex el Shapiro v. Keeper of City Prisons, a defendant was denied bail due to their criminal history; the Supreme Court affirmed that decision (Scott-Hayward & Fradella, 2019).
The use of bail and pre...
