Americans Back Limiting Pretrial Detention, Expanding Release

In the United States, people accused of criminal offenses are presumed innocent unless and until proven guilty. For that reason, confining people to jail before trial is supposed to be a rare occurrence. “In our society, liberty is the norm,” the Supreme Court declared in its 1987 United States v. Salerno decision, “and detention prior to trial or without trial is the carefully limited exception.”

New research shows that Americans strongly prefer policies that align with this ideal. Respondents to a nationally representative survey—conducted for The Pew Charitable Trusts by a bipartisan team of firms, Benenson Strategy Group and GS Strategy Group—expressed support for a pretrial justice system that prioritizes release over detention and employs a range of options to manage risks.

The pretrial period—the time between an arrest and resolution of the criminal case through conviction, acquittal, or dismissal—can last days, months, or years, and can have significant negative effects not only on people accused of crimes but also on victims, families, and communities. And the scale of the issue is large and, in some respects, growing: Nationwide, two-thirds of the approximately 750,000 people in jail are awaiting trial, and between 2000 and 2016, the number of people detained before trial grew 30 percent, according to the Bureau of Justice Statistics.

Despite the high stakes, jurisdictions differ substantially in how they manage the pretrial period, and available data and documentation of practices at the national level are limited. Although some states and localities have well-established laws, rules, and practices to limit detention, others are only beginning to develop such policies. Pew’s survey results provide insights into how Americans think the system ought to work at a time when other research and litigation have sparked interest in pretrial policy among state and local leaders.

Presumption of innocence

Americans overwhelmingly agree that people awaiting trial should be treated in a manner consistent with the presumption of innocence. More than three-quarters of survey respondents said that “Just because someone is arrested doesn’t mean they’ve done anything wrong, so the justice system should treat them more like innocent citizens than like criminals while they're awaiting trial.” This support extended across party lines, among Republicans, independents, and Democrats. Less than a fifth said the counterstatement—“People who get arrested are usually guilty, so the justice system should treat them more like criminals than like innocent citizens while they’re awaiting trial”—came closer to their view.

Arrest versus citation

Police generally have two options when first interacting with a criminal suspect: take the person to jail or release him or her with a citation and an order to appear in court to face charges. Asked about these options, 83 percent of Americans said law enforcement should generally release people accused of nonviolent crimes with a citation rather than arresting them. Among respondents from households with a member who is active in law enforcement, the preference for citations in such cases was 86 percent.

Offense and release types

Support for pretrial release was strong for less serious crimes and remained strong even for more serious offenses with conditions added to protect the community:

• 80 percent of Americans said people accused of misdemeanors should usually or always be released before trial.
• 87 percent said people charged with nonviolent crimes should usually or always await trial in the community.
• 93 percent supported release on personal recognizance—in which a person promises to appear at future court dates but does not have to put up money or agree to other conditions—for those charged with nonviolent offenses.
• In contrast, only 4 percent of respondents said individuals charged with violent crimes should be released before trial, with more than 9 in 10 saying they should usually or always be jailed.
• However, 58 percent of respondents supported pretrial release with supervision for people accused of violent crimes who did not have a serious criminal history.
• 85 percent supported releasing people accused of low-level violent crimes, such as a bar fight, with either pretrial supervision or an order to stay away from the alleged victim.

Public priorities

Although pretrial detention may be appropriate in some cases, it imposes high costs on individuals, communities, and governments. Large majorities of Americans want less money spent jailing people who are awaiting trial but pose little threat to public safety; instead they want to devote more resources to victim services (85 percent support) and behavioral health treatment (82 percent support). Moreover, 8 in 10 Americans said that some minor offenses, such as trespassing and public drunkenness, should never carry the possibility of pretrial detention.

The survey also explored public opinions on money bail, trial timelines for detained defendants, tolerance for different types or amounts of pretrial risk, and experiences with substance misuse and the justice system. Those results buttress and expand on previous polls, including from the John D. and Catherine T. MacArthur Foundation, the Charles Koch Institute, and the Pretrial Justice Institute, that reveal significant support for alternatives to pretrial detention. The findings from this new survey add nuance to a growing evidence base about what can be done to improve pretrial decision-making, better protect public safety, and fairly and efficiently administer criminal justice.

Benenson Strategy Group and GS Strategy Group conducted interviews with 1,215 U.S. adults from May 2 through 14, 2018. The margin of error is plus or minus 2.8 percentage points at the 95 percent level of confidence. When accounting for design effects, the margin of error is plus or minus 4.5 percentage points at the 95 percent confidence level. The sampling error is dependent on sample size, so the margin of error is higher for subgroups.

Jake Horowitz is director and Nina Catalano is a principal associate with The Pew Charitable Trusts’ public safety performance project.