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August 01, 2018 Feature

Efficient Injustice: Too Much Pretrial Incarceration Damages the Integrity of Our Courts

By John Raphling

A Terrible Choice

Carlos Garcia1 spoke to his court-appointed lawyer through the bars of the lock-up adjacent to the courtroom where he would soon appear for his arraignment. He faced misdemeanor charges of “resisting, delaying or obstructing” a police officer.2 He described to his lawyer how the manager of the apartment building had given him permission to enter the meeting room to give his father a set of keys. He described how the Housing Authority police officer stopped him, told him the meeting was not open to the public, and demanded he leave. He said he tried to explain that he was just dropping off the keys and would then go away. He said they argued and a group of officers grabbed him, threw him on the ground, and piled on top of him, hurting his back and neck and bloodying his lip. They then cuffed, arrested, and took him to jail. He told the lawyer that a room full of people saw he had committed no crime.

In a vast majority of cases, accused people faced the choice to assert innocence and stay in jail longer or give up that right and go home.

In a vast majority of cases, accused people faced the choice to assert innocence and stay in jail longer or give up that right and go home.

SPmemory / iStock / Getty Images Plus via Getty Images

His lawyer advised him to plead “not guilty” and set the case for trial.

This case is exactly what our constitutional right to trial is designed to address. The government accuses a civilian of a crime; the civilian disputes the allegation. Carlos was supposed to be presumed innocent and acquitted if the government could not prove his guilt beyond a reasonable doubt. International human rights law enshrines similar values and rights. The Universal Declaration of Human Rights, article 11(a), says: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”3

Carlos agreed he should “fight the case” but had one more question: Would he get out of jail? His lawyer answered with some certainty, based on having practiced in front of this judge for many months: “No.” The fact that Carlos had misdemeanor convictions from years earlier, including a battery and a DUI, meant the prosecutor would argue he was too dangerous to release pretrial. The judge would set bail at $10,000 according to a preordained bail schedule that tied the amount to the level of his charge, not to any of Carlos’s personal circumstances. Carlos and his family did not have money to post bail or even an 8 percent fee for a bond. Carlos would have to stay in jail for at least 30 days before his first possible trial date.4

“What if I don’t fight the case?”

The lawyer told Carlos the settlement offer. The prosecutor who thought him too dangerous to release pretrial would agree to his immediate release on three years of probation with a requirement that he do 15 days of labor, attend 12 sessions of “anger management” classes, and pay various fines and fees. He would have to accept a criminal conviction. He would not clear his name. He would lose any chance of getting compensation from the officers who injured him.

Carlos contemplated his options. He had already spent a full day in a cold, hard jail cell, in pain from the beating administered during the arrest. He spent the night with his back against the wall, eyes open, afraid to sleep because people in the jail might harm him. He worried about his parents, both elderly and needing his care. He regularly took his father to dialysis appointments; his mother’s health was not good. He would lose his construction job and be unable to pay his bills. He would miss his young daughter if he stayed in jail for a month. Carlos made a rational decision. He pled “guilty” to get out.

Two weeks later, as a direct result of his criminal conviction, Carlos’s parents, with whom he lived, received an eviction notice from the Housing Authority.5

A Typical Story

Carlos’s story is highly typical in our courts. Human Rights Watch analyzed data from six representative counties in California and found a range between 70 and 91 percent of people accused of misdemeanors and “non-violent/non-serious” felonies6 pled guilty and were released before their first possible chance to have a trial.7 In one county, about 80 percent pled guilty for immediate release with “time served” deals.8 In other words, in the vast majority of cases, accused people faced the same choice as Carlos: Assert your innocence and stay in jail longer or give up that right and go home.

An academic study looking at pretrial incarceration and case outcomes in Philadelphia and Miami concluded “. . . that pre-trial detention significantly increases the probability of conviction, primarily through an increase in guilty pleas. . . . These results are consistent with . . . pre-trial detention weakening defendants’ bargaining positions during plea negotiations. . . .”9 A Harris County, Texas, study also drew a causal connection between pretrial incarceration and guilty pleas, finding similarly situated defendants were 25 percent more likely to plead guilty if incarcerated than those out of custody.10 These studies, and others,11 demonstrate what people involved in the criminal justice system already know—pretrial incarceration coerces guilty pleas.

This coercive effect of pretrial detention, happening especially with lower-level crimes, betrays the stated ideals of our system. Outcomes depend not on whether there is evidence a person committed a crime, but whether the accused can afford to pay bail. While it is difficult to be certain in any individual case, a system that imprisons people who assert their rights to maintain their innocence while releasing those who give up those rights will produce wrongful convictions.

Pretrial Detention Harms Poor People and People of Color

Sometimes poor people avoid the terrible choice that Carlos faced because they raise the money for bail. While they may get the advantage of better case outcomes, they often suffer in other ways.

When her son, Sean Brown, was arrested and accused of a felony assault, Cara Esparza knew she had to bail him out.12 As a teenager who had been diagnosed with bipolar disorder, he would be vulnerable if he stayed in jail. The bail schedule for his charge was $30,000, far more than she could afford, as her only income was from payments she received to be her son’s caregiver. She found a bondsman who charged her a $3,500 fee and accepted a $300 down payment with installments due every month. She borrowed money from a family member and got him out within three days. Nearly six weeks later, the court held his preliminary hearing, determined that the evidence did not support the felony charge and reduced it to a misdemeanor. He pled guilty for community service and probation. Had he not bailed out, he likely would have faced extreme pressure to plead to the more serious charge or spent over a month in custody for a crime not meriting any jail time.

Cara had to work extra jobs to pay back their relative. She struggled to pay her rent and enough of her monthly utilities bills to keep them from being cut off, while building up further debt to the gas company. She reduced her phone plan and had no money for anything extra, like a night at the movies or Christmas presents. She and Sean had to reduce the amount of food they ate. For a family living on the edge of poverty, the cost of the bond nearly pushed them to homelessness.

Poor people and their families, like Cara and Sean, bear the brunt of the system of pretrial incarceration. A 2016 Federal Reserve Board study found that 47 percent of Americans would have to sell property or go into debt to come up with $400 for an emergency expense like a bail fee.13 Because poverty rates correlate disproportionately with race, a system that discriminates based on lack of wealth also discriminates based on race. In California, for example, poverty rates are significantly higher for black and Latino people than they are for white people.14 The counties analyzed by Human Rights Watch had significantly higher rates of pretrial incarceration for black people than for white people, including a nine times higher rate in San Francisco, illustrating the racial bias of the system.15

While wealthy people can simply pay their way out of pretrial custody to avoid its coercive impacts, poor people and, disproportionately, people of color either suffer significant financial consequences or must confront the choice Carlos faced.

Judicial Responsibility for the Injustice of the Pretrial Detention System

Judges have great responsibility for this distortion of our principles of justice. Judges set bail that forces poor people to go into crushing debt or suffer the misery of jail before even being convicted of a crime. Judges order pretrial incarceration that results in coerced guilty pleas.

There are a variety of reasons why judges deny “own recognizance” release and set bails, often knowing the amount they are setting is unattainable and the accused will remain in jail. Judges have concerns about people committing new crimes if released. However, judges often rationalize detention by saying the accused is too dangerous to let out of jail pretrial, then order release following guilty pleas. This is inconsistent. About 10 percent of felony defendants released pretrial are subsequently arrested for new felonies, with over half of those being new drug offenses.16 The rate of rearrest would drop significantly if states decriminalized drug possession and adopted public health policies to help people with drug problems.17

Judges also fear people will not return to court. Few people actively flee the jurisdiction to avoid prosecution. Many who miss court do so because they face obstacles like poverty and homelessness or mental illness, which make it difficult to meet obligations.18 Providing services that help remove these obstacles would be a more effective and fair way to address the risk of missed court dates. Studies have found that simple reminder calls greatly reduce the rate of failures to appear.19 While there may be legitimate reasons to consider setting bail, they do not justify the massive scale of pretrial detention currently ordered by U.S. courts.20

A primary reason that judges use pretrial incarceration at such a scale is to enhance the efficiency of processing cases. Carlos pled guilty on his first court date. Having done so, he did not require future appearances. There would be no discovery litigation, suppression motions, or evidentiary hearings. No witnesses would be called or jurors ordered to court. A trial, with jury selection, evidence, argument, and deliberations, would take up anywhere from three to seven days of court time. A guilty verdict likely would be appealed, requiring transcripts to be prepared, court of appeal proceedings for months, and review of the judge’s rulings. Carlos’s guilty plea was essentially final and took no more than 15 minutes.

Only a tiny percentage of cases actually go to trial.21 Most resolve quickly through guilty pleas. Data from Sacramento County, California, showed that the median number of days before a guilty plea for incarcerated misdemeanor and nonviolent/nonserious felony defendants was 20 days; for those released on their own recognizance, 70 days; for those released on bail, 100 days.22 People out of custody fight their cases longer and more effectively. They file more motions and develop their defenses and mitigation more fully. They are also able to work, attend school, participate in counseling and programs, raise money for restitution, and do other things that improve their chances of a more lenient sentence.

Some judges and court administrators acknowledge that efficient processing of cases motivates policies favoring setting bail. A court administrator in one California county told Human Rights Watch that the judges feared the court system would not be able to handle an increase of cases being fully litigated instead of being pled early.23 Judges in Los Angeles County told Human Rights Watch they had been advised by supervising judges not to release too many people because they would not plead guilty as readily.24

Of course, judges are not all the same. Many very carefully weigh the individual circumstances of the accused people before them, and many do consider the impact pretrial incarceration will have on people’s lives and their families. But the overall institutional pressure on the judiciary is to process a massive number of cases. This pressure discourages treating accused people as individuals and accounting for their unique circumstances. It promotes an “assembly-line” approach in which each person is a case number to be disposed of as rapidly as possible. Many supervising judges look at the number of cases going through their courthouses and the speed with which they are moving. Removing or avoiding backlogs encourages using mechanisms to increase that speed. Pretrial detention is just such a mechanism.

While delays in court proceedings are undesirable, a system that pressures rapid guilty pleas, regardless of actual guilt, is corrosive and contrary to our values. It must be changed, and not in some superficial way that does not address this core injustice, like replacing bail with similarly unfair algorithmic risk assessment tools.25 Judges must accept that, as an institution, the judiciary not only has allowed this system to emerge, but has been its primary agent.

The Damaged Integrity of Our Courts

The drastic increase in the past several decades of the use of pretrial incarceration is one aspect of our criminal justice system that contributes to disparities and should be changed. The harm to thousands of individuals who either go into debt, suffer in jail to assert their right to trial, or accept the consequences of criminal convictions regardless of actual guilt is a debasement of our fundamental human rights.

That these harms are carried out routinely and knowingly under the authority of our courts damages the credibility of the entire system. Our communities come to see courts not as places of justice, where evidence is carefully weighed and all are treated with dignity, respect, and humanity, but as places where poor people are abused.

We need to change the pretrial detention system so that it does not unfairly punish poor people and their families.26 We must remove its coercive impact so that we can be confident that criminal convictions reflect actual guilt and not simply a lack of resources. We must reorient our courts so that fair and truthful outcomes are more important than simply processing cases efficiently. n


1. Names in this article have been changed to protect the privacy of the individuals and families whose cases are described.

2. Cal. Penal Code § 148(a).

3. Universal Declaration of Human Rights, United Nations, The United States has signed the Universal Declaration of Human Rights. However, in Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004), the Supreme Court concluded that the Declaration “does not of its own force impose obligations as a matter of international law.”

4. Cal. Penal Code § 1382.

5. Carlos’s family was able to negotiate an agreement to stay in their home with the help of the tenants’ union. However, there are hundreds of collateral consequences to criminal convictions, ranging from loss of the right to vote to loss of professional licenses to exclusion from employment, housing, and public benefits.

6. A “violent felony” is statutorily defined and listed in California Penal Code § 667.5(c). The list includes murder, rape, robbery, threats to witnesses, and other crimes. A “serious felony” is statutorily defined and listed in California Penal Code § 1192.7(c). The list mostly duplicates the “violent felony” list but adds some other types of crimes.

7. Human Rights Watch, Not in It for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People 56 (Apr. 2017), [hereinafter HRW, Not in It for Justice].

8. Id.

9. Will Dobbie, Jacob Goldin & Crystal Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime and Employment: Evidence from Randomly Assigned Judges (Nat’l Bureau of Econ. Research, Working Paper No. 22511, 2016),

10. Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention (Univ. of Pa., Inst. for Law & Econ. Research Paper No. 16-18, July 2016),

11. Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes” (Univ. of Pa. Law School, Nov. 8, 2016),

12. Telephone Interview by Human Rights Watch with Cara Esparza, Long Beach, CA (Nov. 14, 2016).

13. Neal Gabler, The Secret Shame of Middle-Class Americans, The Atl. (May 2016),

14. Sarah Bohn, Caroline Danielson & Tess Thorman, Poverty in California, Pub. Pol’y Inst. of Cal. (Feb. 2017),

15. HRW, Not in It for Justice, supra note 7, at 22.

16. Id. at 80.

17. Human Rights Watch, Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States (Oct. 2016),

18. HRW, Not in It for Justice, supra note 7, at 81–83.

19. Id. at 84.

20. Nationally, from 1990 to 2009, the use of money bail increased from 37 to 61 percent. Brian A. Reaves, Office of Just. Programs, Bureau of Just. Stat., U.S. Dep’t of Just., Felony Defendants in Large Urban Counties, 2009—Statistical Tables 1, 14 (Dec. 2013), In recent years, approximately 63 percent of California jail prisoners are pretrial. Human Rights Watch, Analysis of California Board of State and Community Corrections (BSCC) data. BSCC publishes data from its monthly surveys. Counties provide average daily populations for the month for sentenced and unsentenced jail populations. Human Rights Watch analyzed data from all 58 counties for 2014 and 2015.

21. Judicial Council of Cal., 2015 Court Statistics Report: Statewide Caseload Trends, 2004–2005 Through 2013–2014 (2015).

22. HRW, Not in It for Justice, supra note 7, at 61.

23. Interview by Human Rights Watch with [name withheld], former courts administrator, Alameda Cnty., Oakland, Cal. (Mar. 2016).

24. HRW, Not in It for Justice, supra note 7, at 61.

25. Letter from John Raphling, Human Rights Watch, to Alexis Wilson Briggs, Dir., Katal Ctr. for Health, Equity & Justice, and Alec Karakatsanis, Exec. Dir., Civil Rights Corps, Human Rights Watch Advises Against Using Profile-Based Risk Assessment in Bail Reform (July 17, 2017),

26. HRW, Not in It for Justice, supra note 7, at 114–19.

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John Raphling

John Raphling is a senior researcher on criminal justice for Human Rights Watch’s U.S. Program. He has written extensively about bail and the effects of pretrial incarceration, including his recent report Not in It for Justice: How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People. He can be reached at [email protected].