Pretrial Review Could Help End the Mass Incarceration of the Poor

Criminal justice policies promulgated throughout the ’80s and ’90s resulted in an unprecedented rise in the prison population and the U.S.’s inglorious distinction as the nation with the most incarcerated people in the world. Yet while felony charges have increased, funding for public defender services has fallen. As a result, in the words of former Attorney General Eric Holder, public defenders in the U.S are “in a state of crisis.”

As I discuss in my entry in this year’s 10 Ideas journal, the growth in felony charges was directed primarily at the impoverished. Eighty percent of felony defendants are indigent, and public defenders are routinely assigned more cases than the American Bar Association recommends. The issue doesn’t end there, however. Most indigent defendants are unable to afford bail, and therefore are subjected to extended pretrial detention. Detention places incredible stress on defendants, and those unable to miss work for extended periods are placed in financial jeopardy.

The modern system creates incentives to force guilty pleas from defendants. Due to the massive volume of cases, prosecutors, judges, and public defenders all are incentivized to plead out cases quickly. As a result, about 94 percent of criminal cases end in plea bargains, regardless of the actual guilt of the defendants. Roughly 10 percent of legally recognized exonerations in the U.S have involved false plea bargains, and it is likely that there are many more cases that haven’t been discovered.

While some steps were taken to address this problem during the Obama administration, there is little indication that this will continue under the direction of Trump Attorney General Jeff Sessions, who supports harsh crime policies and the private prison industry. That industry turns mass incarceration into massive profits, and will perpetuate the crisis of indigent defense at every level. Nor is the Trump DOJ likely to support reform at the local and state level.

New York State has taken a promising step forward by integrating a new set of guidelines for public defenders into its 2017 budget. Unfortunately, the state did not reform bail practices. The system will therefore continue to incentivize unfair plea bargains.

This is where Pretrial Actual Innocence Review comes in. It is a process in which defendants may request an additional review of evidence and charges prior to trial, and before any plea bargains are entered. It would give the falsely accused another option to prevent incarceration. The policy would also work to prevent pretrial detention by intervening in the charging process.

The review protocol will act as a shield against the wrongful conviction of those who cannot access private counsel. However, we also need wider reforms. We must make fundamental changes to the way that we process indigent defendants, manage pretrial supervision, and support public defense. Until we do that, we need to take steps to protect those who are wrongfully accused.