Andrew Lance, Associate Member, University of Cincinnati Law Review
The national conversation on bail reform has led some jurisdictions to remove cash bail or significantly reform it altogether. Depending on the crime, these reforms still leave some circumstances where low-income people accused of crimes are detained pretrial. The Supreme Court found that pretrial detention for crimes regulates dangerous individuals instead of punishing them. How this detainment impacts the due process rights of misdemeanor defendants is widely overlooked. Though few courts challenge these lines of cases, this article will briefly explain how the expansive bureaucracy of state criminal courts effectively violates the right to have a case proven beyond a reasonable doubt before the government imposes punishment, even if the courts refuse to admit it.
Due process is rooted in the Fifth and Fourteenth Amendments of the Constitution, and it requires the government to prove beyond a reasonable doubt every fact of the crime charged. This means that under due process, the government cannot punish defendants prior to conviction. The government usually contends that pretrial detention is not considered punishment. Even the lowest of misdemeanors that result in jail time are subject to the same due process requirements.
In upholding the Bail Reform Act of 1984, the Supreme Court affirmed pretrial detention as constitutional because it was regulatory. The mere fact a person is detained does not necessarily conclude the government imposed punishment. Instead, the court looked to legislative intent to determine if such a restriction on liberty was punitive or regulatory. The intent was supposedly not to punish dangerous individuals but to serve the societal interest in preventing danger to the community. The Court required that the restraint be rationally related to a nonpunitive purpose and not be excessive, however it has not ruled any pretrial detention as excessive. Many states follow similar schemes, but are trending toward risk-based detainment instead of monetary bail.
The Sixth Amendment guarantees the right to a speedy trial. However, the Supreme Court in Barker v. Wingo prevents the Amendment from developing firm rules on time limits. The Court proposed the societal interests that make this right different: the backlog enables defendants to manipulate the system, people on bond can commit more crime, people could jump bail and escape, and release may be detrimental to rehabilitation. The Court suggested the delay may be an advantage to helping the defendant defend themselves and that it was impossible to determine with precision when the right was denied or a fixed point to exercise the right.
State legislatures have attempted to codify speedy trial protections. Ohio has statutory requirements for how long a defendant can be detained before trial. A misdemeanor must be brought within 45 days if the maximum penalty is not more than 60 days. Some states like Kentucky do not have this right codified beyond a general constitutional guarantee. Lower federal courts also developed tests for measuring when detentions become punitive: The length of the detention, the extent of the prosecution’s responsibility for the delay, and the strength of the evidence upon which the detention is based.
A. The Due Process Issue with Pretrial Detention
Bail reform, though well intentioned, does not adequately address pretrial detention’s inconsistency with due process. After arraignment, a judge will typically set the next court date, whether trial, pretrial conference, or some form of status hearing. Because the courts are notoriously overloaded, these next court dates can be weeks, months, or even set on a date after the maximum sentence would have run. For as long as pretrial detention exists, some defendants will be detained before trial and will be faced with the prospect of serving the entire sentence before being proven innocent or guilty. Cash bail exacerbates this for low-income defendants, but no matter the reason for the detention, the due process issue remains when an individual serves the punishment before a conviction.
B. Pretrial Detention is Punishment
The Supreme Court is incorrect that pretrial detention is not punishment. The Court maintains the claims to uphold the mantra that “pretrial detainees unlike convicted prisoners cannot be punished at all.” Because convicted prisoners and detainees are often held in the same place or in the same conditions, imprisonment after conviction and pretrial detention before conviction is a distinction without a difference. As a result of the detainment, a significant number of defendants will plead guilty, transforming the detainment into punishment with little to no appreciable change in circumstances. The Court may be distracted by its desire to uphold the status quo of the judicial system, preventing it from analyzing the due process problem objectively.
Whether a legislature intends this practice to be punishment is irrelevant. When people detained pretrial are convicted, some of—or all of—that time is often considered time served on their sentence. In that situation, the regulatory detention is sufficient for punishment, so it seems illogical that it would only be officially punishment after guilt when innocent or acquitted defendants would have been in the same conditions.
The Supreme Court has said that the government actions must not appear excessive to this supposedly nonpunitive purpose. Detainment between arrest and arraignment is probably not excessive, but when misdemeanor sentences are shorter than a court’s timeline for bringing a trial or even just the next court appearance, detainment for that period should be considered excessive. Otherwise, defendants will have little incentive to go to trial and are stuck negotiating for the most lenient sentence possible. Because detainment for a suspected crime requires a lower standard than guilt for conviction, pretrial detainment results in punishing misdemeanor defendants based on less than beyond a reasonable doubt. The Louisiana Middle District court proposed a per se rule which is more likely to protect defendant rights:
It offends due process for an accused to remain in pretrial detention when the sum of the time he already has served and the additional time he realistically faces serving before trial falls within the range of sentences he would face if he pled guilty to the charge immediately.
C. The Court System Probably Cannot Speed Up
The Court’s speedy trial rulings in Barker further mischaracterizes pretrial detention. Whatever “bargaining power” detainees have ultimately results in some form of punishment. If releasing detainees is detrimental to rehabilitation, pretrial detention may be serving the same theoretical rehabilitative function of prison, which is a major historical justification for criminal punishment. Even assuming the societal interests mentioned in Barker are legitimate, these crimes are just misdemeanors, so the government does not have a significant interest to justify extended detainment if the trial cannot be brought quickly.
Though the Supreme Court’s reasons for not firmly guaranteeing the speedy trial right with specific timelines is flawed, lower courts do weigh the amount of time it takes to get to trial as a measure of the effect on due process. For example, Ohio, by statute and caselaw, prevents cases from being brought after certain time periods. By the time a defendant wins a speedy trial case or it is statutorily discharged, the damage is already done. The defendant has been incarcerated for potentially the same length of time as the punishment for the crime. This presents no incentive to go to trial, and, in some cases, courts will not treat seriously the defendants that stay in jail to prove their case.
Even the Louisiana Middle District’s per se rule was only intended to affect extreme cases, but because of the short sentences and slow court system, the only way to prevent an excessive violation of due process and a right to a speedy trial is to not incarcerate before trial in nearly all misdemeanor cases. Courts and prosecutors cannot be expected to bring cases immediately, but the problem with factored detention tests is that the “responsibility of the prosecution for the delay” prevents the inherent slog of the court system from leaning toward a violation if it passively creates an excessive detention. The “strength of the evidence” is an inquiry into proof of guilt, seemingly inconsistent with the purpose of trial. Because these tests only marginally protect against pretrial detention, whatever benefits the Supreme Court suggested exist because of the delay is countered by the competing pressures against due process that will either impose punishment or influence the defendant to plead guilty.
Regardless of the justifications of pretrial detention, courts and policymakers should avoid dancing around the reality that this is punishment. Some lower courts have accepted the due process and equal protection arguments. Higher courts and legislators should take stronger stances to end the arbitrary punishment before trial which already directly conflicts with the purpose behind the due process protections—“[u]nless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
Articles present various solutions, mostly emphasizing the need for more resources for public defenders, more selective prosecution of cases, and the elimination of misdemeanor pretrial detention. The policies should extend pretrial corrections and judicial resources to support defendants to prevent bail jumping or future crime or any other suggestion for maintaining detention. The government could address the causes instead of the symptoms of crime, but if the state would rather prosecute, it should still be held to same due process standards that require it to prove its case before inflicting punishment. Courts can refuse to call pretrial detention a punishment, but to a defendant it is virtually the same—a deprivation of freedom. The solution cannot be to continue to litigate speedy trial cases and retroactively apply time served because they are still serving a punishment. The effective application of the guarantee of due process should be to prevent such punishment before it begins.
Ultimately, pretrial detention on bail—even with statutory protections—that results in a significant amount of the sentence being served before adjudication is a violation of due process. The loss of the presumption of innocence, whether in the form of indirectly coercive guilty pleas or detainment in jail for the length of the punishment, means that the individual’s due process interest cannot coexist with misdemeanor pretrial detention. Threatening to incarcerate a person for the maximum length punishable under the offense and then offering the choice to go to trial obfuscates the meaning of due process that cannot be justified.
 See Democrat Newsroom, Rep. Leland Introduces Bipartisan Bail Reform Legislation, Ohio House of Representatives (May 18, 2021), https://www.ohiohouse.gov/news/democrat/rep-leland-introduces-bipartisan-bail-reform-legislation-106417; see Anne Yeager, New Rules of Practice and Procedure To Take Effect July 1, Court News Ohio (June 30, 2021), http://www.courtnewsohio.gov/happening/2020/practiceProcedureRules_063020.asp#.YW8wyBrMJPY.
 United States v. Salerno , 481 U.S. 739, 747 (1987).
 In re Winship, 397 U.S. 358, 364 (1970).
 Bell v. Wolfish, 441 U.S. 520, 535-37 (1979).
 United States v. Salerno, 481 U.S. 739, 746-47 (1987).
 Id. at 746.
 Id. at 746-47.
 Id. at 747.
 Paul Heaton, Sandra Mayson, & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 782 (2017).
 Id. at 719-720; see The Institute for Illinois’ Fiscal Sustainability, blog, Pretrial Reform Efforts in Illinois and Outcomes from Other States, The Civil Federation (Feb. 22, 2021) https://www.civicfed.org/iifs/blog/pretrial-reform-efforts-illinois-and-outcomes-other-states.
 U.S. Const. amend. VI.
 Id. at 521-22.
 See Ohio Rev. Code Ann. § 2945.71-73 (2021).
 See Commonwealth v. Vincent, 134 S.W.3d 17, 18 (Ky. Ct. App. 2004).
 See Samuel R. Wiseman, Bail and Mass Incarceration, 53 Ga. L. Rev. 235, 247-250 (2018) (brief history on study of cash bail).
 Kingsley v. Hendrickson, 576 U. S. 389, 400 (2015).
 See Wiseman, supra note 21, at 247 (explaining how detainment leads to plea).
 See Id. at 254.
 Bell v. Wolfish, 441 U.S. 520, 538 (1979).
 See Wiseman, supra note 21, at 254.
 See Heaton et. al., supra note 11, at 775-776.
 United States v. Gould, 2003 U.S. Dist. LEXIS 10166, at *37 (M.D. La. June 2, 2003).
 See Barker v. Wingo, 407 U.S. 514, 523 (1972).
 See Id. at 519-21.
 See supra notes 14-16.
 See United States v. Salerno, 794 F.2d 64, 78 (2d Cir. 1986).
 See State v. Thacker, 134 N.E.3d 837 (Ohio Ct. App. 2019).
 See generally Billings v. Layzell, 789 P.2d 221, 225 (Mont. 1990).
 United States v. Gould, 2003 U.S. Dist. LEXIS 10166, at *38 (M.D. La. June 2, 2003).
 See United States v. Lev Aslan Dermen, 779 F. App’x 497, 506-07 (10th Cir. 2019).
 Wiseman, supra note 21, at 273; United States v. Gould, 2003 U.S. Dist. LEXIS 10166, at *37 (M.D. La. June 2, 2003).
 Stack v. Boyle, 342 U.S. 1, 4 (1951).
 See Wiseman, supra note 21, at 255-256.
 See generally Wiseman, supra note 21, at 275-276.