Pretrial detainees who are released when charges are dropped should receive financial compensation for the time they spend behind bars, proposes a former Baltimore defense attorney.
“This proposal may sound radical at first blush, but the idea of pretrial compensation is not far-fetched,” argues Zina Makar in a forthcoming article in the Oregon Law Review. “Our criminal legal system already provides for another form of compensation for time lost during pretrial detention.
“The amount of time a defendant spends in pretrial detention is credited toward their sentence.”
Makar, now a teaching fellow at the Georgetown University School of Law, writes that current efforts to curb “unnecessary incarceration” such as eliminating money bail do not always produce the results hoped for by reformers.
When Maryland effectively abolished money bail in 2017, the percentage of individuals detained without bail “skyrocketed” to 52 percent, as judges responded to fears that public safety would be endangered, Makar noted.
Similarly, many of the risk assessment tools used by courts to determine the likelihood of an individual committing a new crime or returning to face trial are subject to racial bias, she said.
Cash compensation for individuals who are wrongfully detained would be a more straightforward disincentive to over-zealous police and prosecutors, the essay declared.
“By implementing a compensation scheme that affects their budgets, institutional players would be encouraged to engage in more conscious and fair decision-making,” wrote Makar.
“Eventually this deterrent would be so effective that fewer and fewer individuals would be incarcerated unnecessarily.”
Individuals with the means to hire attorneys can of course go through the difficult and expensive process of suing authorities for wrongful arrests, but it’s an option rarely available to the poor and marginalized populations who make up the majority of those hauled into jail daily across the country.
Makar maintain that the decrease in the number of people held in pretrial detention would produce savings that could be directed towards community programs and services shown to increase public safety over the long term.
Bail reform advocates have long argued that the system is weighted against poor defendants who, unable to raise bail, face uncertain, long periods in custody awaiting trial. Even if they are eventually released without charges, they may have been fired from their jobs or missed payments or medical appointments—setting off what some researchers have called a cycle of personal disruption that impacts their families and may even push them into criminal behavior.
Citing an example from her experience as a Baltimore defender, Makar recalled a client who had been detained for 28 days and then released after charges of armed robbery against him were dropped.
During his “ultimately pointless incarceration,” the individual lost primary custody of his child and was evicted from his apartment for failure to pay rent.
According to Makar, establishing a cash value for the time an innocent person is held behind bars is only an extension of a long-established principle that represents the “beating heart” of the criminal justice system.
“There is a sense that time spent incarcerated has value, and therefore the sentence should reflect the debt already paid,” said Makar.
“If our legal system credits the guilty for time incarcerated prior to a conviction, then why does no analogous form of compensation exist for individuals who spend the same amount of time in pretrial detention but are never convicted?”
Citing the Maryland experience, Makar argued that simply getting rid of bail wouldn’t solve the problem of “unnecessary incarceration.”
Although reform measures like the Bail Reform Act of 1984 were created to prevent “erroneous deprivations of liberty,” the protections afforded are “impossible to implement due to the sheer magnitude of cases that are processed through the criminal legal system,” said Makar.
While defendants can challenge their pretrial detention by a bail review proceeding or habeas corpus petition, doing so could take weeks, said Makar.
This means that trying to appeal a bail decision would only be worthwhile for defendants accused of felony charges, as misdemeanor trials are typically resolved between 30 to 90 days after a charge.
One of the biggest issues concerning pretrial detention is that it leaves a lasting impact on the accused offender.
“Even in instances of dismissals or acquittals, and regardless of whether she spent time incarcerated prior to trial, the defendant suffers from the stigma of an arrest on her record,” said Makar.
That stigma “often overshadows the presumption of innocence.”
Being detained pretrial could cause an individual to lose their housing, job, education and child custody, all of which could have detrimental effects on the individual’s mental health.
These losses “may be akin to punishment,” but shouldn’t be a purpose behind preventative justice like pretrial detention, said Makar.
Even if the defendant is found guilty, plea deals and time served can result in such a minimal sentence that the defendant is released back into the public after barely serving any time in the first place.
“To lay people, the idea of allowing accused criminals to go free in exchange for a mere admission of guilt seems almost laughable (after all, the defendant was deemed dangerous enough to be held prior to trial),” said Makar.
“This example demonstrates the convenient logical shift that occurs when the legal system converts time spent incarcerated prior to trial from ‘regulatory’ detention to ‘punitive’ credits.”
The conversation on compensation for those who were detained and innocent also concerns whether or not they were factually or legally innocent.
When a defendant claims legal innocence, they are often appealing on the grounds that “improper procedure that occurred during the trial,” said Makar.
Someone who claims factual innocence would need some sort of hard evidence, often DNA, to prove that they were not guilty of the crime they were convicted or accused of.
According to Makar, both are important to hold the system accountable for both properly finding evidence in a case and prosecuting an individual for a crime.
“Some have claimed that the presumption of innocence is only a trial-based right and nothing more,” said Makar.
That is false, she continued, noting that Supreme Court Justices such as the late Justice Ruth Bader Ginsburg noted that the only time presumption of innocence shouldn’t apply is after the individual has been convicted.
Under this notion, “the legally innocent have the right to receive property that was taken as part of a punishment that is now overturned,” said Makar.
Genuine pretrial reform requires change at every level of the system, she wrote.
“There is often a temptation to address pretrial reform by focusing on a singular issue that is ripe for reform, such as bad policing practices; however, the system is so beset with an interlocking web of problems that any singular fix will unfortunately fail to achieve a net effect,” said Makar.
Predictive policing, which often leads to more marginalized groups in jail and prosecutorial discretion, which puts a defendant’s sentence severity into the hands of a biased individual are two issues that Makar noted need reform in order for bail reform to be effective.
There’s also what Makar calls an “information deficit” at the time when a person is put into pretrial detention.
“Although a significant amount of facts can be adduced within the first 24 or 48 hours after a crime occurs, the theory of the case is still in development and evidence is still being processed at the crime lab,” said Makar.
“Defendants are at an information deficit because not all discovery has been turned over.”
Unless these issues are addressed, there’s little hope of repairing the inequities of the present justice system, Makar suggested.
“The goal is to return pretrial detention to the narrowly tailored and limited practice that it was intended to be at its inception,” she wrote.
“Unfortunately, today’s reality is that pretrial detention is so common that it has become normalized, numbing policy makers to the unfairness and ubiquity of unnecessary incarceration.”
Makar said her article amplifies an earlier study, entitled “Displacing Due Process,” in which she focuses on a more equitable application of due process.
To download the full paper, “Unnecessary Incarceration,” click here.
This summary was prepared by TCR justice reporting intern Emily Riley.