From the President: Pretrial Incarceration — Punishment or Regulatory? Ask Alice.

E.G. Morris discusses the current state of the bail system. He believes that pretrial release conditions requiring financial conditions must be used as a last resort. An accused should be released on personal recognizance unless an evidence-based determination is made that the individual presents a flight risk or imminent physical harm to others.

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In 1987, Chief Justice Rehnquist, writing for a seven-member majority of the Supreme Court, observed, “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”1 In 1865, British mathematician Charles Lutwidge Dodgson, who is infinitely better known by his pen name, Lewis Carroll, wrote the following dialog:

“Let the jury consider their verdict,” the King said, for about the twentieth time that day.

“No, no!” said the Queen. “Sentence first — verdict afterwards.”

“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!”

“Hold your tongue!” said the Queen, turning purple.

“I won’t!” said Alice.

“Off with her head!” the Queen shouted at the top of her voice.2 

Justice Rehnquist wrote those words in Salerno in an opinion that determined the constitutionality of the pretrial detention provisions in the Bail Reform Act3 after careful consideration of the case before him, aided by the briefs and arguments of the parties. In what began as an effort to entertain the children of a close friend, Lewis Carroll offered his satirical view of the English justice system based on what he observed to be the reality of its workings. I suggest to you that if the current state of the bail system in our country, taken as a whole, is placed up against the quotes of Justice Rehnquist and Lewis Carroll, the imaginary kingdom described by Carroll is the more accurate description.

In Salerno, the defendant had been ordered detained pending trial under the pretrial detention procedure in the Bail Reform Act. Attorneys for Anthony Salerno argued inter alia that pretrial detention without bail violated the Due Process Clause of the Fifth Amendment because it imposes impermissible punishment before trial.4 The Court quickly disposed of this “substantive due process” argument, agreeing with the government and the court of appeals that pretrial detention under the Bail Reform Act is “regulatory, not penal.”5 The Court found justification for this conclusion partly from an examination of the legislative history. It observed that the intent of Congress was not “to formulate the pretrial detention provisions as punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing the danger to the community is a legitimate regulatory goal.”

The Court examined the statutory structure of the detention provisions of the Bail Reform Act and concluded that they would serve to sufficiently narrow the incidents of pretrial detention so as to not be excessive in relation to the regulatory goal it sought to achieve.6 After extensively examining the “numerous procedural safeguards” present in the Bail Reform Act, the Court concluded that the provisions for pretrial detention in the Bail Reform Act would limit pretrial detention to those cases which “fall within the carefully limited exception” to the norm of liberty.7 

But, an observer of the application of the detention provisions of the Bail Reform Act, not equipped with the briefing or the legal analytical skills of our Supreme Court, might observe that this “carefully limited exception” has at least bitten off a large chuck of the rule if not completely swallowed it. The Bureau of Justice Statistics reports that from 2008 to 2010 only 36 percent of defendants in cases disposed of in federal court were released pretrial.8 For drug cases, the type of case most frequently prosecuted in federal court, that figure is 38 percent.9 More than half of violent and drug defendants released pretrial were initially detained and then released after further proceedings.10 

We are, of course, frequent observers of the application of the detention provisions of the Bail Reform Act. Our experience is that detention is greatly overused and is often a tool of the government to coerce a defendant into providing cooperation or to generally make his life miserable. An agreement to cooperate often transforms a formerly dangerous and potentially itinerate accused into one, in the eyes of the government, whose attendance in court and good behavior can be assured by a combination of conditions of release.

Several years ago in a federal drug distribution case, I represented a client who was detained pretrial despite the “safeguards” of the Bail Reform Act. He and his wife had an infant child, and he was the sole provider for his family. Had he been released pretrial, he could have continued to work in the interim before his ultimate plea of guilty to give his wife the time to seek employment and arrange for child care. His detention, to say the least, created a hardship for his family. After he was sentenced and arrived at his federal prison camp facility, his wife called me in disbelief. She couldn’t understand why the same government who had so vehemently argued that her husband was a flight risk and a danger to the community had now placed him in a facility where he could easily walk away if he wanted to. Her simple question to me was, “How does this make sense?”

It doesn’t make sense. In Alice’s words, it’s “stuff and nonsense.” The explanation is that the decision to detain under the Bail Reform Act is governed by the application of two broad criteria: assuring the defendant’s presence in court and protecting the safety of the community. Presumptions apply in most drug cases and some other cases that no conditions of release will satisfy those criteria. In drug cases, the presumptions are triggered by the statutory maximum of the charged offense, which often has no real relevance to the actual sentence the accused will receive if convicted. There are no empirically validated objective criteria for determining whether the unique characteristics of the defendant or the offense actually indicate that he is a flight risk or a danger to the community. The judicial officer making the determination decides what is and isn’t important to the decision based on his or her own set of criteria. However, once sentenced, the Bureau of Prisons looks at the offender and the offense through somewhat objective eyes and accordingly assigns him to an institution with an appropriate security level.

The practice under the detention provisions of the Bail Reform Act simply hasn’t matched the expectations of the Salerno Court. Some might argue that it was a bit naïve to believe that it would. If the finding that the procedure was not unconstitutional was based in part on the notion that its use would constitute a “narrowly limited exception” to the norm of pretrial release, then perhaps it is time to re-examine that holding in light of the reality of the procedure’s application.

Of course, the problem of pretrial incarceration is not limited to those accused of federal crimes. But, in state prosecutions the source of the problem is different. According the Pretrial Justice Institute,11 over six in ten jail inmates are awaiting trial and money is the primary reason that they remain there. Nine in ten of the defendants who remain in jail pretrial are there because they have not posted bond. Given that the cost of incarceration averages $60 per day but can range up to $200, the annual cost to the taxpayer of this mass incarceration is estimated to be $9 billion dollars.

Aside from the direct financial cost, the collateral consequences of pretrial detention are tremendous. Jobs are lost, families are separated, and, again according the Pretrial Justice Institute, even a short stint in jail leads to a higher likelihood of being arrested again.

PJI also cites statistics that show those held pretrial ultimately receive harsher sentences than those who are able to post a financial bond or who are otherwise released. The statistics are staggering. For misdemeanors, a defendant detained prior to trial is four times more likely to be sentenced to jail and the jail sentence is likely to be three times longer than a released defendant. For pretrial detainees charged with felonies, there is a three times greater likelihood of being sentenced to prison and the likely sentence is twice as long as a defendant who wasn’t detained.

The magnitude of the problem garnered the attention of former Attorney General Eric Holder. In 2011, his Justice Department convened a National Symposium on Pretrial Justice to develop recommendations for reform.12 There, then-Attorney General Holder observed:

As we speak, close to three quarters of a million people reside in America’s jail system. … Across the country, nearly two thirds of all inmates who crowd our county jails — at an annual cost of roughly nine billion taxpayer dollars — are defendants awaiting trial. … Many of these individuals are nonviolent, non-felony offenders, charged with crimes ranging from petty theft to public drug use. And a disproportionate number of them are poor. They are forced to remain in custody … because they simply cannot afford to post the bail required.

The solution to the problem is obvious. Pretrial release conditions requiring financial conditions must be used as a last resort. In NACDL’s Policy on Pretrial Release and Limited Use of Financial Bond,13 our organization urges that a release decision should begin with consideration of personal recognizance release. An accused should be released on personal recognizance unless an evidence-based determination is made that the individual presents a flight risk or imminent physical harm to others. “Evidence based” means measuring the risks against empirically validated objective criteria after a meaningful hearing. Release should be accompanied by effective pretrial supervision when appropriate.

Where financial conditions are required, this should not mean a commercial surety where a sum of money is paid that can never be retrieved regardless of the accused’s performance during pretrial release. NACDL endorses the ABA’s recommendation, first approved in 1968, calling for the abolition of compensated sureties, commonly known as bail bondsmen. We endorse the use of uncompensated sureties such as the accused’s parents, family and other parties who have an interest in the accused’s well-being. The surety arrangement can take the form of pledging property or placing funds with the court or other government agency that is returnable after the case has been finalized.

The reform effort to move toward release criteria derived from evidence-based risk assessment and away from financial requirements for release is underway in several states according to PJI.14 NACDL is working with the defense bar of several states that have already passed reform legislation to develop practitioner guides tailored to those jurisdictions to aid lawyers in becoming better advocates for pretrial release under the reformed systems. Last month, the Colorado Criminal Defense Institute, the Colorado Public Defender and NACDL released the product of our joint project, The Colorado Bail Book: A Defense Practitioner’s Guide to Adult Pretrial Release. The book is available for download from our website.15 The publication gives an extensive description of Colorado’s new evidence-based pretrial release system and offers a practice guide for lawyers in that state seeking release for their clients. Although this book is specific to Colorado law, it is worth taking a look at even if you don’t practice in Colorado. It provides a good look at an alternative to the systems that are prevalent across the country where a magistrate simply sets a bond based on his or her gut feeling about the charges and the individual, or sets a bond based on some predetermined schedule.

However, in addition to changes in the statutory structure for determining conditions of bail and the elimination of compensated sureties, there has to be an accompanying change in the culture that has led to the all too prevalent practice of setting bail with monetary conditions beyond the reach of the accused and the overuse of pretrial detention. Conditions of release must be determined with the presumption that release is appropriate. Judicial officers setting bail simply must follow the Constitution. An accused should be required to remain in jail pending trial only when objective criteria are satisfied that warrant the “narrow exception.” Bail amounts shouldn’t be used to express outrage over the allegations or to demonstrate a “tough on crime” attitude. Pretrial incarceration shouldn’t be used for some objective other than securing the attendance of the accused at trial or protecting the public. In order to prevent these abuses, objective criteria must be developed and their application required.

Prompt and meaningful review of the bail decision must be afforded the accused to enforce adherence to the criteria. NACDL’s policy calls for court review of the decision within 24 hours following the entry of the release order if the accused has not been released and for a designated pretrial agency or the agency who has custody of the accused to determine the reason for the continued detention. If the reason is a condition or conditions imposed by the court, the court shall review and reconsider the release plan in consultation with the prosecutor and defense counsel. If the accused remains in custody for an additional 24 hours following the 24-hour review, the court must review the accused’s continued detention on a weekly basis.

We must advocate zealously for each client’s release. Counsel should be afforded the opportunity to participate in the release decision and should actively advocate for release. If an accused is incapable of meeting the conditions set to obtain release, we should pursue available avenues for review including habeas corpus and appellate review. In addition to the immediate impact of pretrial incarceration, PJI’s statistics show that the consequences of pretrial incarceration are also increased punishment. It truly is “sentence first — verdict afterwards.”


  1. United States v. Salerno, 481 U.S. 739, 755 (1987).
  2. Lewis Carroll, Alice’s Adventures in Wonderland, Chapter 12.
  3. 18 U.S.C. § 3141 et seq. 
  4. Salerno, 481 U.S. at 746.
  5. Id.  
  6. Id. at 747.
  7. Id. at 755.
  8. Thomas H. Cohen, Bureau of Justice Statistics, Pretrial Release and Misconduct in Federal District Courts, 2008-2010 (2012), at 1, available at
  9. Id. 
  10. Id. at 2.
  11.
  12. See National Symposium on Pretrial Justice: Summary Report of Proceedings (2011).
  13. Read the July 28, 2012, board resolution concerning pretrial release and limited use of financial bond at
  14. See
  15. Go to Publication of the Colorado Bail Book was made possible by a grant from the Bureau of Justice Assistance.
About the Author

A certified criminal law specialist, E.G. “Gerry” Morris has been practicing criminal defense law for 37 years. His practice focuses primarily on trials in state and federal courts, but he also handles state and federal appeals as well as post-judgment actions. He is a frequent lecturer at continuing legal education programs.

E.G. Morris
Law Office of E.G. Morris
2202 Lake Austin Blvd.
Austin, TX 78703
Fax 877-497-8347

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