Virtually No One in US Is Dangerous Enough to Justify Jail

Sandra Mayson and Megan Stevenson offer a cost-benefit analysis of pretrial detention.

Bail bond agency in Indianapolis, 2008. (Daniel Schwen, CC BY-SA 4.0, Wikimedia Commons)

By Sandra Mayson and Megan Stevenson
The Appeal

Every day, jails in the U.S. hold close to half a million people who are legally presumed innocent.

When people who have been arrested can’t afford or are denied bail, they are locked in concrete cages that are sometimes littered with excrement, often subject to extreme heat or cold, always rife with disease and violence, and always steeped in humiliation, distress, and fear. In recent years, one-fifth of the incarcerated population hasn’t even been convicted of a crime.

The stated rationale for most pretrial detention is public safety. Current law authorizes detention (or unaffordable money bail) if the accused person presents a threat. Supreme Court doctrine suggests that the threat must be grave enough to outweigh the defendant’s right to liberty. Yet there has been no serious attempt to figure out how “risky” a person must be for detention to be justified on these grounds.

We conducted a survey study to help answer that question. And we learned that, if you ask people to consider the harms that both crime and jail inflict as if they themselves could experience either one, their answer is clear: Jail is rarely justified as a means of harm prevention.

To explain the study, let’s return to the legal justification for pretrial detention (or unaffordable bail).

Flight Risk

(Matt Rogers, Flickr, (CC BY-NC-SA 2.0)

Once upon a time, flight risk was the principal concern in the pretrial phase. In today’s interconnected world, however, few people pose a true risk of flight. Nowadays, the primary justification for keeping accused people in jail is to prevent a future crime. Remember, though, that we are talking about people who have not been convicted. The government has no right to impose punishment before a conviction. It does not claim that pretrial detention is deserved. The legal rationale for detention is simply that its safety benefits outweigh the harm that it inflicts. The public good outweighs the individual cost.

So how dangerous must someone be for the benefit of detention to outweigh its costs? If we detain people who pose a 10 percent risk of committing a serious crime during the pretrial phase, we expect to avoid one serious crime for every 10 people we detain. Is it worth it? This question is extremely uncomfortable, but there is no getting around it.

The benefit of 10 detentions, in economics terms, is the “averted cost” of the crime that doesn’t happen. The primary cost of a crime is the harm it inflicts on the victim. On the other side of the balance, the primary cost of detention is the harm it inflicts on detainees. To figure out whether the averted cost of one serious crime outweighs the cost of 10 detentions, you have to compare the harms of crime victimization and incarceration.

If pretrial detention is justified when it produces a net social benefit, it should be exceedingly uncommon. Instead, the opposite is true.

The standard approach to this kind of cost-benefit problem is to quantify the relevant harms in monetary terms. But quantifying things in dollars can be distorting, because the meaning of a dollar depends on your financial status.

Different Approach

We took a different approach. We conducted a survey asking people to compare the harms of crime and incarceration directly, imagining themselves as both crime victim and jail detainee. We asked questions like, “If you had to choose between spending a month in jail or being the victim of a robbery, which would you choose?”

The results showed that people are incredibly averse to being incarcerated. Respondents deemed a single day in jail to be as bad as being the victim of a burglary; three days in jail to be as bad as a robbery; and a month in jail to be as bad as experiencing a serious (nonsexual) assault. These responses were not just uninformed speculation.

Nearly a third of our sample reported that they or a loved one had been incarcerated. Another third reported that they or a loved one had been the victim of a crime. The median responses in each of those groups, as well as in the group that reported experience with both incarceration and being the victim of crime, were almost identical to the median responses overall.

U.S. Marshals-led drug bust in Roswell, New Mexico, November 2020. (US Marshall’s Office, Flickr, CC BY 2.0)

If jail is as harmful as our respondents judged it to be, only a very high probability of averting serious crime can justify pretrial detention. On average, we would have to avert crimes as grave as burglary in order to justify jailing someone for a single day, avert crimes as grave as robbery in order to justify jailing them for three days, and avert crimes as grave as serious assault in order to justify jailing them for a month.

It might be justified to jail people with a 50 percent likelihood of committing a serious assault within two weeks if we limited the pretrial detention to two weeks, because we would expect to prevent one serious assault for every two detentions—that is, for every month of detention.

The problem is that it is extremely hard to predict serious crime. Even our best predictive tools are nowhere near accurate enough to identify individuals who pose a 50 percent chance of committing a serious crime within two weeks. Validation data for one common risk assessment tool, for instance, shows that, among those classified as high-risk for violence, the expected rate of violent offending within one month is 2.5 percent.

If we detain all members of this group, we expect to avert five violent crimes for every 200 monthlong detentions. According to our median survey respondent, that would impose harm 40 times greater than the averted harm of five assaults.

What the survey suggests is that pretrial detention is almost never justified on the cost-benefit rationale that current law and policy proclaim. Because incarceration inflicts profound harm and our powers of prediction are limited, the cost of detention generally outweighs its expected benefits. If pretrial detention is justified when it produces a net social benefit, it should be exceedingly uncommon. Instead, the opposite is true.

Secondary Debates

So far, the dialogue around bail reform has centered on process: Should we get rid of cash bail? Should we replace it with actuarial risk assessment? These debates are secondary; they focus on methods rather than standards. Eliminating monetary bail does not necessarily wind down detention rates if judges can simply order detention instead. Nor do risk assessment tools.

In the 1987 case United States v. Salerno, the Supreme Court wrote that preventive pretrial detention must be a “carefully limited exception” to the norm of liberty. To make it so, we will need laws that set a clear standard for detention (or bail that results in detention). The laws should stipulate when a person is dangerous enough to detain: What probability of what kind of harm over what timespan is sufficient to justify locking a person up for the public good?

Even if a person does present a threat that justifies some restraint, detention is not justified in cost-benefit terms unless no less-restrictive intervention can adequately reduce the risk. In almost all cases, there should be methods of harm prevention that do not require total confinement—and that are more likely to have enduring positive effects than throwing people in jail. In addition to standards for detention, we will need accountability measures to ensure that the standards govern in practice.

For too long, we have allowed the pretrial system to inflict tremendous harm in the name of the public good. As is true throughout the criminal justice system, that harm has disproportionately befallen people who are Black, brown and poor. There may be some cases — cases of acute danger — where pretrial detention is necessary and justified. But given the damage that jail itself inflicts, those cases should be few and far between.

Sandra Mayson is a visiting assistant professor of law at the University of Pennsylvania Carey School of Law and an assistant professor of law at the University of Georgia School of Law.

Megan Stevenson is an associate professor of law at University of Virginia School of Law.

This article is from The Appeal, a non-profit media organization that produces news and commentary on how policy, politics, and the legal system affect America’s most vulnerable people.

The views expressed are solely those of the authors and may or may not reflect those of Consortium News.

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9 comments for “Virtually No One in US Is Dangerous Enough to Justify Jail

  1. Patrick Donnelly
    March 28, 2021 at 00:34

    It is cost, not conscience, that drives this awakening!

    Too many making money off the taxpayer …. injustice?

    No one cares in the USA…. a selfish society created by the money changers.

  2. RJM
    March 27, 2021 at 19:18

    My first thought after reading this article is that it mentions nothing of the private prison system, sold as a commodity. Many states like Florida are contracted with the private prison companies to maintain a certain percentage of “occupancy” at a preset rate per prisoner. If the occupancy falls below the contracted level, the rate per prisoner increases. This gives a huge incentive for a state to detain as many people as possible for as long as possible.

    The prisons are over populated and there is no such thing as a speedy trial any longer. You can spend years in jail waiting for a jury trial, especially if you rely on a public defender. The entire system is designed to wear you down and plea bargain.

    If your smart enough, you will represent yourself, pro se, or present yourself, sui juris. This is almost an impossible task if you are behind bars, much easier free on bail. Prisons have restricted use or even eliminated access to a law library.

    Its a game and you and your cell mates will never be the winners. Its easy to sit back and think that if you are innocent, which many are, that the system will work and set you free. WRONG. The system is designed for the slave to accept the charges by duress, do their time and be scarred for life

    • Patrick Donnelly
      March 28, 2021 at 00:36

      Sadly correct. Organize and leave the cities, controlled by the corrupt

  3. Katie
    March 27, 2021 at 11:06

    You are out of your bloody minds! I work in misdemeanor corrections. There are absolutely people dangerous enough to be in jail. In fact, I recommend jail many times and judges ignore my extensive reports and allow offenders to go free. It scares the hell outta me what liberals want to do in our society.

    • Patrick Donnelly
      March 28, 2021 at 00:38

      You are not wrong. But clogging the system makes what you say true. Remove the broadbrush and concentrate on violent offenders. Americans have no idea of what liberalism actually is. Your media destroy you. Releasing the violent halps to creat fear. It is deliberate and it is mostly those ‘liberals’ that do it….

    • James Simpson
      March 28, 2021 at 03:19

      Here we have a prime example of the prison-industrial complex. When you are a hammer, Katie, every person in front of you is a nail – or in your context, a ‘dangerous offender’. They are human beings just like you and your family, and they respond to punishment and incarceration just like you would. Have you ever, just once, imagined what it’s like to be the scared, angry, difficult human in front of you when you’re making their lives hell? Or what their lives were like to lead them to be in front of you?

  4. Susan Leslie
    March 27, 2021 at 10:41

    “Virtually No One in US Is Dangerous Enough to Justify Jail”

    I disagree. Many of our so-called US politicians past and present should be in jail!

  5. michael888
    March 26, 2021 at 15:40

    “Democratic presidential candidate and former Vice President Joe Biden once touted a 1992 crime bill as particularly effective because of how aggressively it provided for the death penalty. Democratic presidential candidate and former Vice President Joe Biden once touted a 1992 crime bill as particularly effective because of how aggressively it provided for the death penalty.
    Biden, then a US senator from Delaware, boasted that the bill does “everything but hang people for jaywalking.”
    “In 1996, Hillary made comments about certain kids that were super-predators without conscience or empathy that need to be brought “to heel.” ”

    The only constants in America is that POOR Americans are treated harshly to the letter of the law, and important personages in the Establishment are above the Law. While the argument can (and perhaps) should be made that the Poor need to be treated fairly, more importantly our exalted top officials and politicians MUST be held accountable for their corruption and malfeasance.

    • James Simpson
      March 28, 2021 at 03:21

      Err… but the Guardian news site here in the UK, which is the leftiest of them all apparently, is telling me how wonderful and radically-progressive Joe Biden is. Could it, possibly, be wrong? Perish the thought!

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