Pretrial Detention: Dispelling an Oxymoron With Direct Action


Inmates” by Editor B is licensed under CC BY 2.0

Pretrial detention is an oft-questioned policy that truly stands at odds with central American values, regardless of what the Supreme Court says, or – really – doesn’t say. When one is arrested, the arresting officer is supposed to be able to demonstrate probable cause to justify the arrest. Generally (there’s variation across states), the accused can pay their bail to go home, but, if they cannot, they are sent to pretrial detention to await their court date. Probable cause gets you in all the same, but only the all-mighty dollar bill gets you out. What exactly is probable cause then? Despite its high stakes, it might be that no one really knows. The Supreme Court has consistently and ambiguously defined probable cause as more than simple suspicion, but less than proof beyond a reasonable doubt

The Fourth Amendment defines “unreasonable searches and seizures” as those without “probable cause, supported by oath or affirmation.” However, if you have a hard time determining the precise and contextual differences between suspicion, probable cause, and proof beyond a reasonable doubt, you too are like the U.S. Supreme Court and the average American police officer. 

Ronald J. Bacigal, Law Professor at University of Richmond, illustrates the ambiguity of probable cause through a thought experiment: 

“A small commuter plane takes off with two pilots, a flight attendant and ten passengers. When the attendant slips into the bathroom, a would-be hijacker locks her in and attempts to take over the plane. The attendant can discern the voices of five hijackers as they coordinate their attack on the cockpit. She then hears the voices of five passengers who rally to thwart the attempted hijacking. The stalemate ends when the pilot makes an emergency landing and the police take control of the plane. Predictably, the passengers split into two groups of five, each group claiming to be the heroic passengers while identifying the other group as the terrorists. The police thus face a situation where there is a 50/50 chance that each passenger is a terrorist.”

The issue isn’t that there isn’t an obviously pressing reason to believe five people are terrorists, it’s that the cause isn’t probable, despite that fact. It’s 50-50, not probable, neutral. Overzealous cops are not just unlikely to think this thoroughly about probable cause during arrests, they are arguably disincentivized by the ambiguity of the law. 

This fourth amendment concern was partially addressed in the 2017 U.S. Supreme Court case, Manuel v. City of Joliet. Manuel sued the government for holding him for seven weeks on bad evidence. In a traffic stop, police found a bottle of pills in Manuel’s car, tested them on the spot, got negative results, and arrested him nonetheless. After repeated confirmed negative tests, evidence technicians lied and claimed they were likely ecstasy. When brought before a judge, the judge believed there to be probable cause due to the police complaint riddled with false statements. On that, he was held for 48 days. For no reason. 

The Court ruled in favor of Manuel’s suit, stating that lower courts were wrong in interpreting his time before a judge as the introduction of judicial oversight, therefore negating any Fourth Amendment claims. The Court upheld the ambiguous nature of probable cause, but held that bad findings are not real findings of probable cause. The Court’s ruling didn’t change the law dramatically, but it does highlight the way an ambiguous notion of probable cause puts innocent citizens in danger of unlawful imprisonment.

All these variables certainly problematize the truth-bearing potential of pre-trial detention, and also call into question its purported usefulness for public safety. A 2020 report from the Prison Policy Initiative found that over half a million people were in pretrial detention in U.S. jails and prisons. The vast majority are detained in local jails due to inability to pay hefty bail fees. Let’s not forget that not everyone even makes it to pretrial detention. One can read the statement of probable cause for George Floyd’s arrest and, subsequent, murder – the only evidence for probable cause was word of mouth. Not one word of the statement, however, is dedicated to establishing or even considering the credibility of the informant party.

Despite this, many hold onto the practice of pretrial detention with the logic that those arrested under suspicion of certain classes of crimes (violent and sexual crimes are the usual examples given) should not be released due to public safety. However, we should bear in mind that there are alternatives and, under the Constitution, a person who has not been convicted via a fair and speedy trial of their peers is innocent. Consider, there is no real way of accurately determining how many people are in pretrial detention for serious crimes that they did not commit because they have not had a trial yet. These people are rendered invisible. The question should be: how do we foster a sense of public safety while also preserving the rights of those accused of crimes? New Orleans helps us imagine such a foundational shift.

A recent article points to the importance of community engagement and direct action in the fight against unjust pretrial detention practices. The article’s author, Jon Wool is a longtime member of the Vera Institute of Justice (Vera), an independent nonprofit national research whose, “mission is to end the overcriminalization and mass incarceration of people of color, immigrants, and people experiencing poverty.” 

Wool’s report reviews the period of 2007-2021 and examines the work done by Vera and other community organizers to challenge high incarceration rates in New Orleans, as well as the long-term effect of their labor. Pretrial detention reform in New Orleans was an absolute necessity. In 2010, the U.S. Census Bureau reported that New Orleans’ average daily jail population was approximately 3,500, and it had the highest incarceration rate of any U.S. urban jurisdiction, soaring above the national average. The system was undoubtedly bound by class and race. It disproportionately jailed Black residents and, despite public perception of its necessity, side-by-side studies with similarly-sized cities found that New Orleans’ detention system didn’t produce any clear public good, except in the case of homicides.

The economic influence of the bail bond industry on state law is what created such a ravenous judicial enterprise. Unlike most other states, portions of all money bonds funded various elements of the Louisiana judiciary. This lead to a Kafkaesque system where being brought in front of a judge in New Orleans was more about paying your bill than examining the merit of the accusation. 

Starting in 2007, Vera convened working groups to work with elected officials and justice system stakeholders to refine the system, but were confronted with opposition due the system’s economic over-reliance on its predatory bail-heavy approach. With the goal of reducing incarceration, Vera and the New Orleans City Council pursued alternative approaches, such as municipal ordinances that led to police using summonses instead of arrests for misdemeanors. New Orleans police also began to make arrests under municipal code, instead of state code, which lead to a reduction in arrest-to-court-decision delay “from more than 60 days to five days in victimless cases.”

In 2010, Vera worked further to oppose the construction of a 5,800 bed jail that would have functionally green-lit overzealous detention through capacity. Vera thought to put the community in the foreground of opposition, given the community’s capacity to best articulate the deficits of its relationships with policing. In collaboration with the Orleans Parish Prison Reform Coalition (OPPRC), they successfully reduced the size of the jail to 1,438 beds.

They did not stop there. In 2012, they organized direct action projects with the community, such as shifts towards non-financial release conditions, to reform pretrial services. These developments were seen as essential to meaningfully combating unnecessary detention and proved that the community could effectively make a support system that encouraged court appearances and public safety without interference. 

Wool states, “Pretrial justice could not have advanced as it did without public participation.” It makes sense. Direct action from the community holds governmental industries responsible by rallying degrees of public support that can express, fundraise, and mobilize more effectively than non-profits can alone. 

It’s not a one-off instance, either. Reforms are still marching forward on this front. In 2018, the mayor and city council expanded court funding to reduce the structural reliance on the bail bond system. These creative approaches on the part of Vera, OPPRC, and sympathetic members of the New Orleans Municipal Government show us that local organization can make significant differences despite entrenched opposition on the State level. As of mid-April 2021, New Orleans’ jail population had dropped below 800, marking a 77% reduction since community work began in 2010.

These days, many feel disenfranchised from politics, but there’s strength in local organizing. The work of these groups is the difference between freedom and captivity for countless innocent civilians, and it would not have happened without their ingenuity and more than a decade of hard work to circumvent structurally-inscribed predatory policies. Perhaps now, pretrial justice advocates can begin to look outside of New Orleans for new potentialities. 

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