By Andrea Woods and Portia Allen-Kyle

Every year, millions of people are arrested, required to pay money bail they cannot afford, separated from their families and loved ones, or absent from their jobs--subjected to long periods of incarceration based on the mere accusation of a crime. This all occurs while people are presumed innocent under the law. Black and brown people, their loved ones, and those without the economic resources to thrive suffer the worst harms. The money bail system is in dire need of an overhaul.

New York: American Civil Liberties Union, 2019. 15p.

By Advancing Pretrial Policy and Research (APPR)

The pretrial system has, in recent years, become a focus of attention for governments, civil rights advocates, the media, and nonprofit organizations. Understandably so: it is the front door of the criminal legal system, and decisions made in the early stages of a criminal case have major impacts on everything that follows. As Berkeley law professor Caleb Foote wrote in 1956, “Pretrial decisions determine mostly everything.” This adage is true for individual cases: whether or not someone is detained while awaiting trial has major impacts on whether they are found guilty, whether they are sentenced to incarceration, and how long those sentences are.Unnecessary detention can also disrupt lives, leading to lost jobs and housing, family instability, and even increased likelihood of rearrest. It is also true for the system as a whole: virtually all of the growth in the U.S. jail population in the 21st century is attributable to pretrial incarceration. Housing people before trial costs county and state governments at least $14 billion annually. So, it is critical that we get pretrial decisions right. But in most of the country, the pretrial system is deeply flawed. There is an overreliance on custodial arrest instead of citations or summonses; release and detention are determined more by money than by judicial officers making intentional decisions about public safety or flight; defense counsel is not present, despite someone’s liberty being at stake; and pretrial services focus on monitoring rather than supporting people in the community. In addition, like the rest of the criminal legal system, the pretrial system suffers from systemic racism, with Black, Indigenous, and People of Color (BIPOC) disproportionately arrested and booked, subjected to higher financial conditions of release, and more frequently detained. These practices result in many people who could safely be released remaining in jail, often for long periods. And they do not enhance—and frequently undermine—community safety and well-being. Improving the pretrial system requires a comprehensive approach; we cannot focus on a single decision point or a single agency. And the problems will not be fixed with a single solution such as an actuarial assessment tool or even the abolishment of financial conditions. Rather, we need to look at the system as a whole, involve policymakers from all agencies, and engage the community meaningfully in the improvement process.

Silver Spring, MD: Advancing Pretrial Policy and Research (APPR) , 2022. 29p.

By Crijns, J.H. ; B.J.G. Leeuw, and H.T. Wermink.

The goal of this report is to provide an overview of the use of pre-trial detention in practice in the Netherlands. In recent years there has been a lot of discussion and criticism of the (extensive) use of pre-trial detention in Dutch criminal procedures. In this report we will assess whether this criticism is justified, and if so, what steps need to be taken to alleviate the concerns that exist regarding pre-trial detention. The overarching conclusion of our research is that Dutch legislation on pre-trial detention meets the relevant standards of the European Court of Human Rights (ECtHR). This leads us to the conclusion that legislative changes are not strictly necessary. However, our research shows that the way in which the legal rules on pre-trial detention are applied in practice is rightly criticised by defence lawyers, academics and even judges themselves.

The Hague: Eleven International Publishing Co., 64p.