Scott-Hayward,Christine S. and Henry F. Fradella,Punishing Poverty: How Bail and Pretrial Detention Fuel Inequalities in the Criminal Justice System

Punishing Poverty presents an important historical review and discussion of the U.S. criminal legal system and the institutional relationship with both the public and private bail bond industry. The authors review the legal history of bail in the common law tradition, outline legal frameworks guiding pretrial release decisions, and present problems associated with current risk-assessment-based bail determinations. The historical review highlights how this early point of contact with the criminal legal system – the judicial decision to release or not, and the ability of families to raise funds for release – shapes people's subsequent criminal legal experiences.

Burgeoning scholarship has emerged to examine the system of monetary sanctions. These sentences occur after citation or prosecution and adjudication (Harris, 2016). However, scholars have given less attention to the front-end costs of criminal legal entanglement – the physical, emotional, and economic costs borne prior to any determination of guilt. Pretrial detention is a crucial cost point for many facing criminal processing.

The authors begin by introducing Kalief Browder, a 16-year-old young man taken into custody in New York in May of 2010 for allegedly stealing a backpack. Because his family could not afford the $3000 bail set by the court, Mr Browder anguished in Rikers Island Jail, much of it in solitary confinement, for over three years. Because of his refusal to plead guilty to a crime he steadfastly denied committing, Mr Browder's case remained unresolved for years, and via a series of court hearing continuances he remained in jail with no adjudication ever occurring. A judge finally released Mr Browder from jail after dismissing the case in May of 2013. Because of the psychological damage caused by his incarceration and the related physical and mental trauma, Mr Browder died by suicide in 2015. The authors center Kalief Browder's experience in the opening of their book to highlight the contemporary U.S. criminal legal system's reliance on bail as a gateway to freedom pre-adjudication for people with financial means, but closes access to freedom for those without. Punishing Poverty moves on to examine how poverty prevents people from avoiding incarceration, even before being found guilty, by interrogating the legal mechanisms and practices by which racial and economic inequality are perpetrated within the U.S. criminal legal system.

The authors present a detailed legal review of case law outlining the development of court decision-makers’ policies and practices regarding pretrial detention. The discussion is a great primer for those interested in understanding key concepts related to the various forms of pretrial release. They review the common law origins of bail and provide legal summaries of pivotal Supreme Court cases such as United States v. Feely (1813), the first case addressing the purpose of bail as a recognizance agreement. Punishing Poverty highlights the focal transition of this system from its original aim of insuring people return to court hearings, and contrasts with the 1984 Bail Reform Act, which shifted reasoning to center on the protection of the community and prevention of further offending. With this shift in institutional foci, the authors argue, discussions of the Eighth Amendment's Excessive Bail Clause were left primarily to academic exploration and less to the consideration of court actors and policymakers. ¹

Chapter 2 outlines possible pretrial release decisions, highlighting the significant discretion individual judges have throughout these very brief hearings. They provide a review of criminological research on bail decision-making and explain how judicial decisions are determined using both legal and extralegal information. Connecting to the legal review in Chapter 1, authors discuss the use of bail schedules, which are based almost exclusively on the severity of the offense, and as such, subvert individualized analyses of people brought before the court. The review of research on racial and ethnic disparities illustrates the disparities found in both bond amounts and judicial decisions regarding pretrial release on one's recognizance. Previous research has consistently found Black and Latino people are given higher bond amounts and are treated more harshly in pretrial release decisions than are similarly situated White people. This chapter briefly reviews the historical development and role commercial or private bonds companies play in the pretrial release process and are contrasted with community-based bail funds.

Chapter 3 is a very helpful review of research on risk-assessment based pretrial instruments and outcomes. The authors detail the evolution of actuarial risk assessment instruments (ARAIs) and the contemporary iteration, actuarial pretrial risk assessment instruments (APRAIs). Both attempt to “estimate the likelihood or probability people will engage in future behavior” (80). Here they detail the dizzying iterations of assessment tools used in different regions of the United States, developed by states, associations, and even foundations. The authors conclude that when judges use these assessment tools much of the information relied upon include factors related to poverty. Because people of color disproportionality experience poverty, decision-making criteria correlate with the race and ethnicity of the people evaluated. Another way the authors suggest APRAIs reproduce racial and economic inequality is via the use of criminal history as a factor reviewed in evaluations. They illustrate how law enforcement over-surveillance of communities of color, and resulting arrests, coupled with biased prosecutorial practices, generate criminal legal histories. These arrest and prosecution records are closely correlated with race and ethnicity. In consequence, the assessment criterion of criminal legal history ends up over-selecting for the pretrial incarceration of people of color compared to White people.

In sum, the authors conclude, “it is clear that ARAIs and APRAIs alike demonstrate predictive power based on aggregate data, but they do not predict the future behavior of any particular defendant” (127). The authors point to the quote “bias in, bias out” (124) from law professor Sandra Mayson, meaning information used in assessments relate in some way to racial disparities either in employment, the community, or the criminal legal system, and as such, replicate the same bias in decisions. However, the authors decline to take a side in the debate over whether to use assessments or not. Instead, disappointingly, they argue doing away with actuarial risk assessments does nothing to address the existing racial, ethnic and socioeconomic disparities within the criminal legal system. Another interpretation of the analysis of existing research would be to suggest that doing away with actuarial assessments would at least be one step forward in dismantling racial and economic inequality in the criminal legal system, albeit incremental.

The fourth chapter of the book illustrates the impact of pretrial detention. We learn about the consequences to individuals detained prior to adjudication including the loss of educational and vocational opportunities, the risk of and exposure to violence, and the related trauma. The authors outline the ways in which individuals’ absences from their communities has a negative impact on their incomes, employment status, and families. We learn of the impact of pretrial detention on case outcomes; people who experience pretrial detention are more likely to be convicted and sentenced to further incarceration and less likely to have their charges reduced in contrast to those people who were not incarcerated prior to adjudication. We learn how pretrial detention negatively influences convictions and encourages guilty pleas. The authors connect these negative outcomes for those detained to the racial, ethnic and economic disproportionality of those incarcerated.

What is most impressive about this book is the detailed, practical, and important suggestions for policy reform. In sum, the authors argue bail schedules and commercial bail should be eliminated. If bail is retained, the authors provide a series of potential changes to state laws, local polices, and to the use of judicial, prosecutorial, and law enforcement discretion. The primary suggestion being that the ability of a person to pay should be considered in pretrial detention decisions.

While I will not outline all of the proposed series of reforms, one point I will highlight is their argument to move to the use of citations in lieu of arrests for low severity violations. Such a summons may or may not require a person to attend a court hearing, but does frequently include a fiscal penalty. These penalties do not include ability to pay assessments. While a citation will prevent a person from immediate detention, for people living in poverty, the punishment of incarceration is transformed into an economic burden. Moreover, as research has shown (Harris et al., 2022), these monetary sanctions create a cycle of debt, incarceration, and the loss of other freedoms. The authors do recognize the potential consequence of over-policing for financial incentives from the increased use of citations; however, they fail to consider how a system of increased citations will intensify the economic, criminal legal, social burdens and disparities for people who are poor.

In sum, the book is a feat in showing the complex web of legal decisions, statutes, and local policies and practices that have created the inequality producing and replicating system of pretrial detention. The review of existing research, legal decisions, and policies is a helpful primer for those concerned about the criminal legal system in the United States. The work sets the stage for further discussions on what substantive policy changes and reforms should look like to address the racial, ethnic, and economic inequality the institution and various systems produce. The authors rightly note that it will take much effort and many reforms to remove money from the system of pretrial detention – thus discontinuing the disparate punishment of people solely because they are living in poverty.