Pleas and Excuses

Tyler Fagan and I have just completed a final draft of a chapter for the Palgrave Handbook of Philosophy and Public Policy, edited by David Boonin. The introduction to the paper is below; feel free to email me for the full paper.

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At the present moment, roughly three million persons are being held in pretrial detention around the world. The United States accounts for an outsized portion of this group, holding approximately half a million people pretrial per year.[i] This number has been growing rapidly—up by more than fivefold since 1970, when only 82,900 people were held pretrial in the US—even as crime rates have fallen.[ii] At the risk of stating the obvious, people held in pretrial detention have not been found guilty of the crimes for which they have been arrested. Often, they never will: in many jurisdictions, less than half of all felony arrests result in probation or a prison sentence.

Because of the staggering number of people being held in criminal detention prior to adjudication, the practice stands in need of an ethical defense. Pretrial detention must be ethically justified in both principle and practice; if it cannot be, then these statistics are evidence of injustice perpetrated by the state on a massive scale. In this chapter we will explore the ethical justifications for criminal detentions prior to adjudication, or what is sometimes misleadingly called “pretrial detention.”[iii] We will argue that, while it is possible in principle to justify pretrial detention, there is reason to think that much of the pretrial detention in the U.S. is not, in fact, justified.

Because there is little chance of defending it on purely forward-looking grounds, we argue that any plausible justification for pre-conviction detention must be partly backward-looking. Reflecting on the aims of the criminal law more broadly suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain backward-looking retributive criteria and forward-looking instrumental criteria are met. Once we have articulated the aims of criminal law that justify criminal detention, we will argue that the vast majority of pretrial detentions in the U.S. fail to meet these criteria.

We will then argue that as a result, current pretrial detention practices in the U.S. unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place. We claim persons deserve praise and blame, reward and punishment, partly because they have the capacity for self-control via self-interventions over time. Persons have a fair opportunity to avoid breaking the law partly because they can intentionally manipulate their own behavior. Criminal detention in general tends to diminish detainees’ moral agency in this sense; and thus must be justified in every instance it is used. We will argue that because backward-looking justifications are relatively weak when a defendant is held pretrial, such criminal detentions ought to be used as a last resort only where community-based monitoring or sanctions are unfeasible. However, even where pretrial criminal detentions are ethically justified by appeal to the backward-looking and forward-looking aims of the criminal justice system, they can be designed to better preserve moral agency as self-interventions. Pretrial detentions, when they are used, should be designed to give detainees enriched environments that provide opportunities for meaningful choice-making and targeted rehabilitation. In this way, such detentions might serve to preserve or enhance, rather than diminish, moral agency.

[i] 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

[ii] 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

[iii] In the literature, the term “pretrial” detention is often used, and convention impels us to use it in this paper. However, we find the term misleading, because it inaccurately implies that detentions occurring in absence of the adjudication of the criminal case are “pretrial.” In the U.S., 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.