When I first joined the Bronx Defenders as a young lawyer in 2000, I quickly realized that the most critical part of my job wasn’t trying cases or negotiating pleas; it was keeping the people I represented off of Rikers Island. At the time, the jail complex, which sits on a spit of land in the middle of the East River, held 15,000 people who had been accused but not convicted of a crime and were awaiting their day in court. The people confined there were subjected to extreme separation, isolation, trauma, and violence. Some would never be convicted or sentenced to incarceration, their charges eventually dismissed or reduced. And many more would never recover from the experience.
Despite the harms and horrors that I bore witness to, I accepted pretrial incarceration as an inextricable part of our criminal legal system. After all, the practice had existed for as long as I could remember. And in the 1980s, the Supreme Court had found that incarcerating presumptively innocent people was constitutional because there were rationally related, nonpunitive purposes for it—ensuring return to court and protecting public safety. Propped up by these twin purposes, pretrial incarceration seemed invincible and impervious to systemic challenge.
But over the course of my twenty-five-year career, my perspective has fundamentally shifted. I now understand that the purpose of pretrial detention is not, in fact, to ensure return to court and protect public safety. Its purpose is to punish. The harm that I witnessed is not just some unfortunate by-product of our pretrial system. The harm is the point.
I continue to believe that fighting for individual liberty is imperative, but I no longer see pretrial incarceration as inevitable. Instead, I have come to the conclusion that pretrial incarceration is indefensible and we must end it. I didn’t arrive at this conclusion overnight. Instead, it took years for me to get there, even though the foundation for my current thinking is something that I saw every day and yet, somehow, failed to see clearly: that pretrial incarceration looks, feels, and acts exactly like punishment.
Just like people who are sentenced, those held pretrial are separated from their families and communities. Their ability to see, touch, and communicate with loved ones, friends, and neighbors on the outside is severely restricted, eroding critical connections and bonds. Limited visiting hours, exhaustive security procedures, and lack of physical contact exacerbate their isolation. They are confined to their housing units and told when to wake, eat, exercise, bathe, and sleep. Movement is regulated and heavily guarded. Even the most intimate activities are constantly monitored by both fellow detainees and officers. People’s bodies are no longer their own, subjected instead to regular strip and cavity searches in the name of carceral safety.
Like those who are serving prison sentences, the buildings confining people pretrial are overcrowded, poorly maintained, unsanitary, with little natural light and inadequate heating, cooling, and ventilation. Medical and mental health care are minimal and substandard, worsening conditions, causing illness, and resulting in death. Violence and abuse are pervasive. Fights, beatings, slashings, and stabbings are common, as are assaults by guards. Even when physical violence subsides, a constant stream of emotional and psychological abuse persists.
Like post-conviction confinement, the punitive nature of pretrial detention reverberates beyond the jail walls. Unsalaried people lose their jobs after missing just a few days of work, leaving them unable to support their children. Those who can’t pay rent due to lost income face eviction, sometimes rendering entire families homeless. Government benefits, often a lifeline, are terminated or suspended. Education is interrupted; missed classes and lost credits jeopardize futures. The harm caused by pretrial incarceration touches not only the lives of those detained but entire families and communities.
James Whitcomb Riley famously said, “When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.” Pretrial incarceration is indistinguishable from punishment. Yet the Supreme Court, in its 1987 decision United States v. Salerno, effectively decoupled the purpose of confinement from its effect, holding that pretrial restriction on liberty does not constitute impermissible punishment as long as it is rationally related to an alternative purpose. In his dissent, Justice Thurgood Marshall derided the “absurdity” of the majority’s reasoning and its ability to “magically” recast confinement as nonpunitive.
Nevertheless, the Court’s sleight of hand was effective, creating a seemingly impenetrable barrier to challenge. But it wasn’t just Supreme Court precedent that made pretrial incarceration seem so invincible. It was also that its two purported purposes—ensuring return to court and protecting public safety—provide such effective rationales for the practice, playing on natural assumptions that those facing the prospect of conviction and incarceration will either flee or cause harm.
For years, I uncritically accepted the mirage. Despite the obvious signs that pretrial detention was inherently punitive, I believed that judges were genuinely concerned about flight and public safety, and so with each bail hearing, I argued that the person standing next to me was neither a flight risk nor a danger to the community. But the relationship between pretrial incarceration and its purported purposes is actually quite tenuous.
An estimated 5 million people are incarcerated before adjudication annually. Nearly half a million are detained on any given day. Approximately 60 percent of all people accused of crimes, and 75 percent of those accused of federal offenses, are held pretrial. At this scale, it seems like pretrial incarceration is a fixed feature of our criminal legal system, yet it wasn’t always this way. Before the 1960s, the vast majority of people were released pretrial. Since then, however, the number of people detained has surged by 433 percent. There are currently more legally innocent people behind bars than there were convicted individuals in jails and prisons in 1980.
So why the drastic rise? I initially assumed it had to be because of some epidemic of flight or crime wave sweeping the country in our age of mass incarceration, but something else was happening: While the pretrial population was rising, both crime and arrests were actually steadily declining. Between 1991 and 2013, as the jail population grew exponentially, violent crime decreased by a staggering 50 percent, and property crime dropped by 47 percent. Meanwhile, arrest rates fell from 5,807 per 100,000 people in 1995 to just 3,691 in 2013.
These trends demonstrate that the widespread use of pretrial detention is a relatively new phenomenon, and its expanded use was largely untethered from the problem of flight or public safety. This weak relationship between the practice and its stated purposes is not just a hallmark of history. As recent data and research show, it is equally true today.
For decades, the use of money bail has been defended as necessary to secure people’s return to court. Without “skin in the game,” the thinking goes, people will flee, preventing the so-called wheels of justice from turning. But money bail is routinely set above what people can pay, which means that, in practice, it works more as a device for detention than a mechanism for release. Bail funds, however, disrupt this pretrial punishment pipeline by securing the release of those without the means to post their own bail. In doing so, they also challenge “flight risk” as a justification for both money bail and detention, as data from one bail fund reveals that 93 percent of people initially detained and then bailed out by the fund returned to court even without a financial incentive to do so.
Data from jurisdictions that passed bail reform likewise demonstrates that the vast majority of people will return to court if released. Even though far more people were released pretrial than had been before bail reform was implemented, rates of return remained the same or even improved post-implementation. In New York City, for example, failure to appear declined from 15 percent in 2019 (pre–bail reform) to 9 percent in 2021 (post–bail reform). In New Jersey, return rates rose from around 90 percent to 97 percent in the first four years after implementation of its pretrial reforms.
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Research also shows that people charged with serious offenses are more likely, not less, to return to court—upsetting one of the routine rationales for setting high bail on people charged with serious cases. “Failure to appear,” in other words, isn’t all it’s cracked up to be. And on the rare instances when it does happen, often for reasons outside of a person’s control, imposing pretrial detention only harms them and their communities.
Similarly, the pretrial population’s risk to public safety is also largely a myth. Put simply, the vast majority of people jailed pretrial will not be rearrested while their case is pending, and thus they are not a threat to public safety. This conclusion is drawn from research showing that even in high-crime cities where bail reform was implemented, resulting in high release rates, rearrest for a new crime remained uncommon and rearrest for violence continued to be exceedingly rare. In July 2023 in New York City, for instance, there were close to 50,000 people awaiting trial in the community. Of those, only 5 percent were rearrested that month, and fewer than 1 percent were rearrested for violence. Data from other bail reform jurisdictions shows similar results. Both before and after reform, only 2–3 percent of people released in jurisdictions that passed bail reform were rebooked into jail on a violent charge. Some have turned to predictive tools in an effort to determine who that tiny cluster of people will be, but leading social scientists have concluded that trying to predict who might commit a violent act while awaiting trial is like finding a needle in a haystack—the occurrence is just too rare. Any attempt to forecast future violence with precision is, at best, an exercise in magical thinking.
Even more compelling, however, is research into the risk to public safety caused by detention itself. Studies show that pretrial confinement has criminogenic effects and actually increases rather than decreases the likelihood that someone will be rearrested in the future. This outcome should not be surprising. Incarceration leads to job loss, housing insecurity, and fractured family ties as well as disrupted education, health, and mental health treatment—which are all drivers of criminal entanglement. This means that, contrary to popular belief, detaining people before trial is not advancing the goal of public safety. It’s harming it.
Given all of the above, one might expect that jurisdictions would be rolling back the practice and closing jails. But counties and states are instead rolling back reforms, introducing legislation to expand detention and thus increase the number of people held pretrial. What could possibly explain this deep-seated commitment to the practice in the face of evidence that it not only causes incredible harm but that it is also neither necessary nor effective at achieving its stated purposes? The most plausible explanation is that it serves an altogether different purpose—the one that was most obvious to me in my early days as a public defender: punishment.
It goes without saying that incarcerating presumptively innocent people pretrial to punish them is unconstitutional. It violates key principles of our legal system—the presumption of innocence, due process, and proof beyond a reasonable doubt. As a result, nobody will readily admit that punishment is the purpose. Yet when I think back to my time as a public defender and all the people that I fought to get released during pretrial proceedings, it is clear that judges were not actually presuming people innocent and assessing whether they were a flight risk or a danger to the community. Instead, they were routinely presuming that the people I represented were guilty and deciding whether they deserved to be incarcerated.
That explains why judges tend to jail people who are charged with serious, violent offenses who otherwise have strong ties to the community and no criminal history. It is also why, as any public defender can tell you, the best chance of getting someone facing serious charges released pretrial is to not focus on the future and their likelihood of returning to court or avoiding rearrest, but instead focus on the past and make a strong case for their actual innocence.
The uncomfortable truth is that judges, like many of us, operate under the assumption that where there is smoke, there is fire. The police made an arrest, the prosecution brought charges, and therefore the accused is probably guilty. The only real question in the judge’s mind is whether the person deserves to be punished and whether incarceration is the appropriate punishment.
For the general public, it may be natural to see someone on the news get arrested, presume them guilty, and make armchair judgments about whether they should be incarcerated. But judges are not ordinary people. Their most basic job is to follow the rules and apply the law. And our courtrooms are not the same as our living rooms. They are places where, at the very least, higher standards, values, and expectations should govern—not fear of being on the front page of the New York Post.
The shadow of pretrial punishment should be deeply troubling not just to those working in the criminal legal system and those impacted by it; it should trouble all of us. If judges can simply convict people in their minds and mete out punishment before any evidence has been presented, witness testimony taken, or legal process started—all on the basis of an arrest by the police and charges by the prosecutor—why have a criminal system at all?
Our pretrial justice system is fundamentally unjust. Its purpose is not, as we have been told, to ensure return to court and protect public safety. It is to punish. I believe that like other institutions, policies, and practices we have come to see as anathema to fairness, equality, justice, and freedom, we will one day look back at pretrial incarceration and wonder in disbelief at how we ever stood by and let it happen. Justice Marshall was right. It is “absurd” to call pretrial incarceration anything other than punishment. It is indistinguishable from punishment and there is no other rationally related purpose but punishment. For decades, in my own career as a defender, I bought into this absurdity. It is now time that we call this duck a duck. Pretrial incarceration is repugnant to our system of justice. There’s no defending it. Ending it is our only option.
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