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A lot of people are talking about alternatives to cash bail recently, which made me wonder, why does pre-trial detention exist in the first place?

My layman's understanding of pre-trial detention is that it's a kind of "buffer" or a necessary evil. The root problem appears to me that we don't have enough judges, public defenders, etc. to get everyone to trial immediately, so we have to hang onto them until a slot opens up. Bail exists because of flight risk, so if in some world there were no need for pre-trial detention, we wouldn't need bail or any alternative.

Is my understanding essentially correct? In other words, does pre-trial detention exist because of a resources constraint? Or is there some more fundamental reason why we have this intermediary step between arrest and trial?

My question is coming from a US-based context, hence my lead-in about "cash bail". However, I'm curious about pre-trial detention in general, regardless of whether bail is used or what form it takes.

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    Are you confusing detention before arraignment/ initial hearing - the bail hearing- and detention before trial? The former can be a few hours to a couple days, and can be on the longer end if there is not enough judges. The latter can be weeks. – Damila Aug 20 at 5:18
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    You can not get everyone to trial immediately. At the very least you would want your own defender have time to prepare a defense. – Polygnome Aug 20 at 12:49
  • @Damila, that's a good question. I suppose that I was only thinking about the latter, detention before trial. I hadn't even considered detention before arraignment. – somebodyisakoala Aug 20 at 23:47
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Even if unlimited resources were available, in order to have a fair trial, the prosecution and defense both need time to prepare their cases, research the law, conduct investigations, gather evidence, interview witnesses, seek out experts, order forensic tests, etc, etc. And there will be pretrial motions that have to be prepared, argued, and judged. You have to figure out what's going to happen to the defendant during that time, be it detention, release, bail, or some other alternative.

Shortages of personnel obviously exacerbate the delays, but even without that issue, it's not like the courts could try every defendant on the spot. That would be something like the Wild West, or the Dark Ages; certainly not what the modern world considers justice.

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    Also there are some offenses for which no bail will be accepted and one is detained pretrial without bond because of the fear that future crimes will be committed pending trial, or that flight is inevitable no matter how much money is sacrificed for a bond. When someone skips on a bond it is partially a punishment in lieu of full due process for blowing off the court. – ohwilleke Aug 20 at 4:49
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Aug 21 at 18:48
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Suspects are considered innocent until found guilty in a court of law. So detaining them even for one day needs a justification. Holding the trial instantly is not feasible from the prosecution or defense viewpoint. Justifications for the detention might be:

  • To prevent evidence or witness tampering. Cash bail does not prevent this.
  • To prevent flight from the trial. Cash bail might actually work for this case if it is set higher than the "cash value" of any possible punishment. So do measures like taking away the passport or requiring them to report to the police in regular intervals.
  • To prevent further crimes. Of course the initial crime isn't proven at this point, so the legal system needs some contortions to justify this.

So if there is no extraordinary likelihood of further crimes, and no evidence to be destroyed, then the defendant should be released until trial unless the expected punishment is so harsh that flight from justice becomes likely.

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  • "To prevent further crimes." More specifically, to prevent further crimes related to the original crime (like covering up the evidence, silencing a witness, revenge, etc.). – Mast Aug 22 at 7:08
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    @Mast, I made that a separate bullet point. The third bullet point is more along the lines of holding a drunk until sober. – o.m. Aug 22 at 10:24
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Pre-trial detention falls into two categories: the fear that the accused won’t show up for the trial, the fear that the accused will commit more crimes. The first is why bail exists, the second is why trials are supposed to be speedy.

Note that both operate under the premise of “if the accused is guilty”, which is also why trials are supposed to be speedy — it is unfair to keep the them in a halfway state between guilt and innocence.

Bail is messed up, and has become a punishment in itself — for starters most crimes are some what flexible in charging, so that depending how it is viewed it can be either minor or major, and bail is almost certainly going to be based upon the most adverse view. Secondly, except where it is a flat schedule, part of the calculation will be resources which will negatively affect the poor. Finally, bail bonds companies have lead to an increase in bond amounts, resulting in the accused either staying in jail or loosing the 10% earnest money, as most people can’t afford to pay bail in full.

Speedy trials and extra resources could solve part of the bail problem, and hence address the first fear by simply making it meaningless.

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