Incarceration without Conviction

Pretrial Detention and the Erosion of Innocence in American Criminal Justice

Mikaela Rabinowitz

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781000391473
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Incarceration Without Conviction addresses an understudied fairness flaw in the criminal justice system. On any given day, approximately 500,000 Americans are in pretrial detention in the US, held in local jails not because they are considered a flight or public safety risk, but because they are poor and cannot afford bail or a bail bond. Over the course of a year, millions of Americans cycle through local jails, most there for anywhere from a few days to a few weeks. These individuals are disproportionately Black and poor.

This book draws on extensive legal data to highlight the ways in which pretrial detention drives guilty pleas and thus fuels mass incarceration--and the disproportionate impact on Black Americans. It shows the myriad harms that being detained wreaks on people's lives and well-being, regardless of whether or not those who are detained are ever convicted. Rabinowitz argues that pretrial detention undermines the presumption of innocence in the American criminal justice system and, in so doing, erodes the very meaning of innocence.

1 Introduction

On March 1, 2017, Spike TV began its six-part broadcast of Time: The Kalief Browder Story, a TV documentary detailing the experience of Kalief Browder, a young Black teenager who spent three years inside New York City’s Riker’s Island Correctional Facility because he was unable to afford $3000 in bail after being accused of stealing a backpack. From the age of 16 when he was arrested until the age of 19 when he was released, Browder maintained his innocence, refusing multiple plea bargains that would have expedited his release and freed him from the persistent physical and psychological violence and deprivation that characterized his life inside Riker’s. Ultimately, the District Attorney’s Office dropped the charges and Browder was released in May 2013. The years following his release from custody were plagued by post-traumatic stress and psychiatric breakdowns and, two years later, Kalief Browder took his own life, dying by suicide in June 2015.

As the Jay-Z produced documentary illustrates, Browder’s experiences are exceptional and thus noteworthy—he was only 16 at the time of his arrest; the incident for which he was arrested was minor and the bail amount clearly disproportionate to the alleged offense; the detention facility in which he was held is one of the most notorious in the country; Browder’s insistence on his innocence and unwillingness to take a plea deal were extremely rare; and the depth of Browder’s trauma and his eventual taking of his own life are not the usual consequence of pretrial detention. In many more ways, however, Browder’s experience was rote to the point of mundane. He was a young Black man arrested for a minor offense with the resources for neither private representation nor release on bail; Browder’s bail hearing likely lasted no more than a couple of minutes, with neither the judge nor the prosecutor truly considering Browder’s likelihood of appearance in court, risk to public safety, or ability to pay bail; the adjudication process was subject to numerous continuances and administrative delays that kept Browder in custody indefinitely; and ultimately, despite Browder never being convicted of the crime for which he was detained, the consequences of this detention were extreme.

Thus, however exceptional this case was, Browder’s experience is also far too common. On any given day, approximately 500,000 individuals are in pretrial detention in the US, held in local jails not because they are considered a flight risk or a public safety risk, but because they are poor and cannot afford bail or a bail bond. Over the course of a year, millions of Americans cycle through local jails, most there for anywhere from a few days to a few weeks (Subramanian et al. 2015b). As with all aspects of the American criminal justice system, these individuals are disproportionately Black and poor (Nellis 2016; Subramanian et al. 2015b; Western and Pettit 2005).

Unfortunately, these individuals are also understudied, their experiences largely missing from the sizeable body of academic research on incarceration. Although the past decade has seen researchers within and outside of the academy paying more attention to pretrial detention, the depth and the breadth of this work still pales in comparison to scholarship on mass incarceration, punishment, or inequality. Moreover, research on pretrial detention has been limited by the almost total absence of qualitative research, which has meant that the voices and experiences of those who have been detained have not been a part of this work and have neither driven nor even really informed how scholars think about and understand pretrial detention.

Drawing on interviews with 67 individuals who were detained pretrial in Chicago’s Cook County Detention Center and quantitative analysis of 5000 criminal court records from the Cook County Criminal Court, this book unmasks and explores a relatively hidden process endemic to mass incarceration: pretrial detention. In so doing, this book makes a series of arguments related to the social science and policy literatures on incarceration and to the function of the criminal legal system.

In terms of the former, this book argues that the study of pretrial detention is essential for understanding both mass incarceration and the collateral consequences thereof. Despite the wealth of scholarship on mass incarceration, this work has not sufficiently reckoned with pretrial detention either as a driver of prison growth or as a distinct form of incarceration that has grown alongside imprisonment. To date, most research on the emergence of mass incarceration has focused on prisons alone, with particular attention given to sentencing policy and other policies and practices that have put more people in prison and kept them there for longer (Alexander 2012; Mauer 1999; Schoenfeld 2018; Travis et al. 2014). The complementary body of collateral consequences research that has emerged to document the implications of incarceration for individuals, families, communities, and society has followed this trend, focusing both implicitly and explicitly on the collateral consequences of prison expansion and incarceration (Hagan and Dinovitzer 1999; Mauer and Chesney-Lind 2002; Middlemass 2017; Patillo et al. 2004; Western et al. 2004).

Incarceration without Conviction underscores how pretrial detention mirrors well-established patterns in mass incarceration and complicates common assumptions about those patterns. In particular, this book makes an important contribution to our understanding of the drivers of mass incarceration and their disproportionate impact on Black Americans, underscoring the ways in which front end criminal processes like pretrial detention drive back end processes like conviction and imprisonment.

Toward that end, Incarceration without Conviction addresses important questions raised by the growing body of research on pretrial detention, which has overwhelmingly found that being detained pretrial increases a defendants’ likelihood of being convicted and, if convicted, of being sentenced to prison compared to similar defendants who are released pending adjudication (Lowenkamp et al. 2013; Oleson et al. 2014; Petersen 2019b; Petersen 2020; Schlesinger 2007). This book answers important questions raised by that research by shedding light on the mechanisms through which pretrial detention impacts case outcomes. Using a mixed methods approach that quantitatively measures the effect of pretrial detention on defendants’ case outcomes and then draws on interviews with defendants who were detained about their case resolutions, this book reveals the reasons why pretrial detention is so strongly correlated with negative case outcomes. In addition, the diversity of circumstances of the individuals interviewed for this book—including whether they maintained their innocence or acknowledged guilt and whether they were cleared of wrongdoing or convicted of a crime—provides a unique opportunity to understand how people who are detained weigh a variety of considerations in deciding whether to plead guilty. Regardless of their actual guilt or innocence, individuals who are detained largely consider the same factors as they decide whether or not to plead guilty, including their jobs, their families, their conditions of confinement, their likelihood of prevailing in court, and the stigma of having a felony conviction.

Understanding how these decisions are made highlights the role of front end criminal justice processes—arrests, bail determinations, pretrial processes, etc.—in exacerbating the back end—i.e. mass incarceration.¹ Moreover, documenting the disparate rates of detention for Black versus non-Black defendants makes clear how these processes entrench and exacerbate the already dramatic overrepresentation of Black people in our criminal justice systems.

In addition, this book provides a needed adjustment to the research on the collateral consequences of incarceration, much of which inadvertently conflates the consequences of being incarcerated with those of having a felony conviction. Because Incarceration without Conviction explores the experiences of individuals who ultimately are convicted of the charges for which they were detained as well as individuals who are never convicted, this book is able to examine the ways in which being detained has financial, personal, and psychological consequences regardless of whether or not people are convicted of felonies or cleared of wrongdoing. In this way, this book also contributes to the growing body of research detailing the many ways in which even minor contact with the justice system can have far-reaching consequences, including Kohler-Hausmann’s (2018) and Natapoff’s (2018) respective work on misdemeanors, and work on legal financial obligations (LFOs) related to contact with the criminal legal system (Beckett et al. 2008; Martin et al. 2018; Shannon et al. 2020).

Finally, this book engages Supreme Court rulings and the associated law review literature on the nexus between the presumption of innocence, an “axiomatic and elementary” principle at “the foundation of the administration of our criminal law” (Coffin v. US 1895), and pretrial detention as a process in which legally innocent individuals experience circumstances otherwise reserved for people convicted of crimes. In particular, this book argues that the experiences and outcomes of individuals who are detained pretrial show the functional irrelevance of presumption of innocence, as defined by the Supreme Court and implemented in the American criminal justice system. Indeed, for individuals who are detained pretrial, neither actual nor legal innocence is a meaningful differentiator of process or outcome: during the pretrial phase, when all defendants are legally innocent, actual innocence has a minimal effect on whether or not an individual is convicted, as individuals who have not committed any crimes plead guilty following a series of encounters with the criminal legal system that lead them to believe that conviction is the only likely outcome. Moreover, for the small minority of people who are not convicted, both the fact of being detained and the collateral consequences thereof make their eventual acquittals or dismissals effectively meaningless. In addition, as this book shows, the consequences of being detained—both during and following detention—are largely identical regardless of legal or actual innocence, and include both material losses and psychological trauma.

Thus, the goal of this work is twofold: first, to add to the current body of academic research on incarceration and related issues like racial inequality, collateral consequences, pretrial detention, etc.; and second, to contribute to the larger body of work—academic and nonacademic research, journalism, popular media, etc.—drawing attention to the great injustice that is pretrial detention in this county in the hope that we can eliminate the systems and processes that have eroded the very meaning of innocence.

Below, I provide a brief overview of prior research on pretrial detention as well as a brief discussion of case law related to the presumption of innocence, bail, and pretrial detention.

A Brief History of Bail and Pretrial Detention in the United States

Bail is written into the American Constitution via the Eighth Amendment’s prohibition on excessive bail, which implicitly acknowledges the desirability of pretrial release. Despite this, however, neither bail nor pretrial detention was the focus of much policy or research until the mid-to-late 1950s, when law professor and criminal justice reformer Caleb Foote began a series of studies on bail and pretrial detention, which soon found an interested audience in the form of a major policy-oriented philanthropist.

Directed by Foote and carried out by Foote and a...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Series Editor’s Foreword
• Acknowledgements
• 1 Introduction
• 2 “The Mechanics Of The Guilty Plea”
• 3 “But What Will Become Of The Innocent?”
• 4 “Someone Has to Pay a Price…”
• 5 “The Pains Of Imprisonment”
• 6 Looking Forward
• Appendix: Notes on Quantitative Methodology
• References
• Index