Massive and persistent protests across America in 2020 seek reform of criminal legal systems, even amidst pandemic conditions. Many of these reforms focus on systemic racism in policing. But policing is not the only reform agenda and is far from the only place where race matters in criminal law. Pretrial detention has huge repercussions on the lives of those arrested, and those consequences create racial disparities. Pretrial detention can jeopardize employment, housing, and child custody; it can inflict serious psychological harm on defendants, their loved ones, and entire communities. Pretrial detention also makes defendants more likely to plead guilty and to face longer sentences.
And yet pretrial detention stands out from the crowd of criminal law issues because meaningful reform has occurred in this space over the last few years, as several articles in this symposium issue describe. Although the federal government has been sclerotic on the question of pretrial release (as it is in most of the criminal law), state and local governments have responded to better ideas, one jurisdiction at a time. Better pretrial release practices depend on the robust collection and use of local data. They also require buy-in from local judges, clerks of court, prosecutors, defense counsel, law enforcement, jail administrators, and community corrections officials. Because so many key resources and actors work at the local level in American criminal law, it is not surprising that successful results happen locally, even if state or federal legislation, funding, and leadership could prove helpful to these reform efforts.
In this introduction to the symposium issue, we make a few observations about the politics of pretrial-release reform. First, reforms in different places do not all share the same objective. Some places seek less pretrial detention, while others wish to reduce or eliminate the use of cash bail that releases dangerous wealthy people and incarcerates people solely for being poor. Some replace money bail with heavier use of algorithmic risk-assessment instruments.
Second, there is no single sequence of reforms or even homogenous set of reforms in the pretrial liberty realm. The recent proposal from the Uniform Law Commission (“ULC”) might eventually become a uniform statutory floor nationwide. But it remains to be seen how many state legislatures will adopt that thoughtful proposal. And even if it were adopted nationwide, some jurisdictions—particularly Democratic-leaning urban areas—would nonetheless pursue more ambitious reforms, as places like Durham County, North Carolina, have demonstrated recently. Other localities might choose entirely different reforms to layer on top of the statutory framework in their states. Pretrial-detention reform is not a single train, where all passengers can move down the same reform track, encountering the same stopping points in the same order, continuing only forward, with each local system free to get off at any stop.
Even though there is no single sequence of reforms for local actors to follow, familiar patterns appear as changes occur. Certain reform outcomes tend to happen together in tandem. Moreover, identifiable local coalitions tend to work together to advocate for distinct bundles of reform. Despite the enormous local variety in pretrial release practices (and in criminal justice more generally), it is possible to generalize about the politics of reform.
