Abstract
In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification must be partly backward-looking. Reflecting on the broader aims of the criminal law suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain retributive and instrumental criteria are met. We conclude that while it is possible in principle to justify pretrial detention, there is reason to think that much of the pretrial detention in the United States is not, in fact, justified. We argue that current pretrial detention practices in the United States unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place.
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Notes
- 1.
R. Walmsley, “World Pre-Trial/Remand Imprisonment List (Second Edition),” 2014. http://www.prisonstudies.org/sites/default/files/resources/downloads/world_pre-trial_imprisonment_list_2nd_edition_1.pdf.
- 2.
Vera Institute of Justice, “In Our Own Backyard: Confronting Growth and Disparities in American Jails,” 2015. https://www.vera.org/publications/in-our-own-backyard-confronting-growth-and-disparities-in-american-jails.
- 3.
In the literature, the term “pretrial” detention is often used, and convention impels us to use it in this chapter. However, we find the term misleading, because it inaccurately implies that detentions occurring in the absence of the adjudication of the criminal case are “pretrial.” In the United States, less than 5% of felony arrests end in a trial, and the majority of those arrested on a felony spend time in detention prior to their case being dismissed or being determined not guilty or guilty via a plea or trial. We would prefer a phrase like “criminal detention prior to adjudication,” which is more cumbersome but undeniably more accurate.
- 4.
J. Kang-Brown, “Incarceration Trends: Data and Methods for Historical Jail Populations in U.S. Counties, 1970–2014,” 2015.
- 5.
Vera Institute of Justice, “In Our Own Backyard.”
- 6.
T. Cohen, “Pretrial Detention and Misconduct in Federal District Courts, 1995–2010,” 2013. Bureau of Justice Statistics.
- 7.
Ibid.
- 8.
Justice Policy Institute, “Release: The Bail Bond Industry Is for Profit, Not for Good,” news release, 2012, http://www.justicepolicy.org/news/4389.
- 9.
Cohen, “Pretrial Detention.”
- 10.
Ibid.
- 11.
N. Wing, “Our Bail System Is Leaving Innocent People to Die in Jail Because They’re Poor,” Huffington Post 2017.
- 12.
Justice Policy Institute, “Release.”
- 13.
Wing, “Our Bail System.”
- 14.
725 ILCS 5/110.5.
- 15.
Ibid.
- 16.
J. Angwin et al., “Machine Bias: There’s Software Used across the Country to Predict Future Criminals. And It’s Biased against Blacks.,” 2016. https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.
- 17.
Justice Policy Institute, “Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail.,” 2012. http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail_executive_summary.pdf.
- 18.
Angwin et al., “Machine Bias.”
- 19.
Ibid.
- 20.
Ibid.
- 21.
R. A. Duff, “Pretrial Detention and the Presumption of Innocence,” in Preventative Justice, ed. A. Ashworth and L. Zedner (Oxford University Press, 2015). Duff notes “I suspect that the general acceptance of a practice of pre-trial detention is not based on a purely consequentialist calculation of costs and benefits. Few of us are pure consequentialists: most agree that our pursuit of such consequentialist goals as crime-prevention and public security must be constrained by respect for non-consequentialist demands of justice, which generally forbid the preventive detention of responsible agents who have not been convicted of a crime.” Duff justifies bail and some limited pre-trial detentions based upon the public demand that defendants “should reassure us that he will appear for trial, and not interfere with the criminal process; and (since words are cheap) that he back up his verbal reassurance with something more material—a financial bond or ‘recognizance’ that he will lose if he does not live up to his reassurance.” If a defendant does exhibit intent to abscond or avoid his legal responsibilities , we may be justified in detaining him (11).
- 22.
D.K. Brown, “What Virtue Ethics Can Do for Criminal Justice: A Reply to Huigens,” Wake Forest L. Rev. 37 (2002).
- 23.
H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (New York: Oxford University Press, 1968).
- 24.
Norval Morris, The Future of Imprisonment (Chicago: University of Chicago Press, 1974); N. Morris and M. Tonry, “Between Prison and Probation: Intermediate Punishment in a Rational Sentencing System,” (Oxford University Press, 1991); Richard Frase, “Norval Morris’s Contributions to Sentencing Structures, Theory, and Practice,” Federal Sentencing Review 21 (2009).
- 25.
Morris, The Future of Imprisonment, 59. Unfortunately, although limiting retributivism seems to be the consensus view in the United States, with many penal codes explicitly offering hybrid justifications for punishment, criminal sentences often do not adhere to Morris’s principle of parsimony.
- 26.
Richard Frase, “Limiting Retributivism: The Consensus Model of Criminal Punishment,” in The Future of Imprisonment in the 21st Century, ed. Michael Tonry (Oxford University Press, 2003).
- 27.
Harry G Frankfurt, “Freedom of the Will and the Concept of a Person,” in Free Will, ed. Gary Watson (Oxford: Oxford University Press, 1982).
- 28.
Angela Smith, “Control, Responsibility, and Moral Assessment,” Philosophical Studies 138, no. 3 (2008).
- 29.
Nomy Arpaly, Unprincipled Virtue (Oxford: Oxford University Press, 2003).
- 30.
John Martin Fischer and Mark Ravizza, Responsibility and Control: A Theory of Moral Responsibility (Cambridge: Cambridge University Press, 1998).
- 31.
Although we have done this elsewhere, see William Hirstein and Katrina L. Sifferd, “The Legal Self: Executive Processes and Legal Theory,” Consciousness and Cognition 20, no. 1 (2011); William Hirstein, Katrina L Sifferd, and Tyler K Fagan, Responsible Brains (Cambridge, MA: MIT Press, forthcoming); Katrina L Sifferd, William Hirstein, and Tyler K Fagan, “Legal Insanity and Executive Function,” in The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies, ed. Mark D White (Santa Barbara, CA: Praeger, 2017).
- 32.
Adina Roskies, “Don’t Panic: Self-Authorship without Obscure Metaphysics,” Philosophical Perspectives 26, no. 1 (2012).
- 33.
Ibid.
- 34.
Nomy Arpaly to The View from the Owl’s Roost, December 12, 2017, 2017, https://theviewfromtheowlsroost.com/2017/12/12/notes-from-a-character/.
- 35.
Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis, IN: Hackett, 1985), EN 1103a30.
- 36.
We discuss a version of the Bert case, and the ways criminal punishment can be designed to protect moral agency, in Hirstein, Sifferd, Fagan, Responsible Brains.
- 37.
A. Van Hirsh and A. Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford University Press, 2005).
- 38.
F. Cullen, C. Jonson, and D. Nagin, “Prisons Do Not Reduce Recidivism: The High Cost of Ignoring Science,” The Prison Journal 91 (2011).
- 39.
Jesse Meijers et al., “Prison Brain? Executive Dysfunction in Prisoners,” Frontiers in Psychology 6, no. 43 (2015).
- 40.
For information on these Cook Country jail programs and the views of Sherriff Tom Dart, see: http://www.chicagotribune.com/suburbs/daily-southtown/news/ct-sta-jail-chess-st--0427-20160426-story.html; http://www.chicagonow.com/chicago-garden/2009/09/vegetable-garden-at-cook-county-jail; http://www.chicagotribune.com/news/chicagoinc/ct-pizza-in-jail-0510-chicago-inc-20170509-story.html; https://www.usatoday.com/story/news/nation/2014/10/26/cook-county-inmates-demolish-abandoned-homes/16871459/; https://www.cbsnews.com/news/cook-county-jail-sheriff-tom-dart-on-60-minutes.
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Sifferd, K.L., Fagan, T.K. (2018). Pretrial Detention and Moral Agency. In: Boonin, D. (eds) The Palgrave Handbook of Philosophy and Public Policy. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-93907-0_2
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