Jeffrey Epstein is probably the most hated person in America this week. He is accused of using his obscene wealth to sexually abuse young girls and to arrange for further abuse by his rich and powerful friends. It’s hard to imagine a more toxic combination of privilege and criminality. But the scorn reached new levels with Epstein’s request for bail using his mansion and jet as collateral and his offer to stay in home detention in his enormous Manhattan mansion.
Half a million individuals have been convicted of nothing and are presumed innocent, yet they sit behind bars as if neither were true.
Though the judge on Thursday denied his request and ruled that he will be detained while awaiting trial, the mere fact he could make such a proposal raises an important question: Why should he be able to try to use his vast resources to get out when so many poor people, and usually poor people of color, are detained for far less serious conduct? As a federal public defender, I understand the question and the outrage. But for anyone interested in improving the criminal justice system, the rallying cry should not focus on the issue of jailing Epstein before his trial. It should focus on letting the many others awaiting trial out.
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Some small number of people released on bail will commit crimes before their trials, and some of those cases will garner outsize media attention. (When is the last time you saw a headline screaming: “Man Released on Bail Doing Just Fine”?) Sadly, a lot of really bad criminal justice policy has come from these reviled high-profile defendants prompting tough knee-jerk policy responses, which are then imposed on the masses of defendants whose names aren’t well known.
That contributes to a system in which roughly 500,000 of the 2 million people in America’s jails and prisons are there awaiting trial. It’s a staggering percentage of a staggering total of incarcerated people. These half million individuals have been convicted of nothing and are presumed innocent, yet they sit behind bars as if neither were true. The vast majority are poor (up to 90 percent of all criminal defendants are too poor to hire a lawyer) and people of color (although whites make up 64 percent of the overall U.S. population, they represent 30 percent of the prison population, with African Americans and Latinos heavily overrepresented).
Any form of incarceration is difficult, but pretrial detention is particularly brutal. People are held for months and sometimes years in facilities that are meant to house people temporarily. This typically means the space is often cramped and unsanitary, there are no educational or vocational programs, and medical care is abysmal.
More problematic, in some ways, is what pretrial detention means for life outside bars for those who are held. Because people in pretrial detention have often been plucked unexpectedly from their daily lives with no chance to make arrangements, they often suffer life-altering consequences: the loss of housing, employment and sometimes custody of children. This, of course, is all before they have been convicted, though studies have shown that the mere fact of pretrial detention makes it much more likely they will in fact be convicted — and much more likely to receive a higher sentence and to recidivate later in life.
Nobody should be jailed solely because they cannot afford to pay for bail. It is the most direct form of unequal justice based on wealth disparity. But ending cash bail is not enough. The federal system, which does not use cash bail but instead often only requires a defendant’s family or friends to sign a bond that would leave them on the hook if the defendant doesn’t appear back in court, offers a cautionary tale.
In the federal court in Manhattan where Epstein’s case is pending, the Southern District of New York, the demographics of defendants look similar to those in many other parts of the country: Approximately 80 percent of all defendants are too poor to afford counsel and more than 75 percent are people of color. Even excluding people who are noncitizens and have no lawful immigration status (for whom release is more complicated because of immigration “detainers”), more than half of all defendants are detained pretrial.
That is an enormous detention rate for people presumed innocent. It is also unnecessary and counterproductive. For people released in the Southern District, the rate of those who fail to appear in court is less than one percent in most years, and the felony rearrest rate typically hovers around one percent, according to the SDNY pretrial services agency. Given the studies showing higher lifetime recidivism rates for people detained pretrial, the net result of the high rate of pretrial detention is likely a decrease in public safety.
Thus, even without a cash bail system, more needs to be done to curb excessive pretrial detention. Prosecutors, who argue for detention in the SDNY at higher rates than the Pretrial Services agency recommends, should take a broader, and more accurate, view of public safety. Judges should be more willing to look at the overall numbers and recognize the low risk of flight and lack of danger that comes from setting reasonable bail conditions. And lawmakers need to ensure that those things happen by legislating much stronger presumptions in favor of release.
Anyone who cares about reforming the criminal justice system and reducing its stark inequities should focus less on detaining the rich and entitled and more on freeing everyone else. Our outrage over the Epstein case would be better spent on the bigger problem of too much detention — a problem that will remain after the Epstein headlines fade.