Academics have been increasingly diligent in their search for novel problems to “fix” with solutions that create new and potentially worse problems, Doug Berman at Sentencing Law and Policy notes a new law review article by Penn Prawf Kimberly Kessler Ferzan entitled “The Trouble with Time Served.” Who knew there was trouble?
Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial. In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice. In fact, however, crediting detainees for time served is perverse. It harms the innocent.
A defendant who is found not guilty, or whose case is dismissed, gets nothing. Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive. Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions. The bottom line is this: Time served is not a panacea. To the contrary, it contributes to criminal justice pathologies.
Before you say it, don’t blame her for including “that disproportionately impacts people of color.” It’s mandatory if you want to get anything published these days.
The argument that “time served” doesn’t help the detained defendant whose case is dismissed or acquitted at trial is, of course, correct. You can’t bank “in” time for the next case, so while “time served” helps the defendant who gets sentenced to jail or prison by serving as a credit, it’s time lost for nothing for the defendant who doesn’t.
This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted. The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds. Time served should be abandoned. Detainees should be financially compensated instead. Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants—both the innocent and the guilty—and can lead to positive reforms. Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.
There are two ways of looking at this. On the one hand, the time lost to pre-trial detention is a “cost” of having a legal system, where a proper arrest combined with a justifiable fixing of pre-trial bail or detention is going to occasionally result in costing a defendant a piece of their life. It’s bad, but can it be avoided?
Ferzan’s alternative is to compensate all defendants for pre-trial detention should their case later be dismissed or they’re acquitted. Will money fix this problem? Ironically, the cost of pre-trial detention is astoundingly high, which is rarely appreciated by either the public or the court, but we’re used to throwing money down that rat hole so the pain isn’t really felt.
But if there were a direct cost via compensation for the detained defendant, what would that do to the incentives for tossing a case? Would prosecutors be less willing to dismiss the bad case? Would they be more coercive in their effort to get a plea, any plea, to avoid this cost? Would this make them more likely to reveal Brady or less?
More importantly, what would defendants want? If someone’s being detained and can get out sooner, if not immediately, because of the time served credit, would they prefer that be eliminated and they do the time all over again, with a check (how much remains an open question) on their way out? Let’s be real, most defendants aren’t detained, and most detained defendants don’t have their cases dismissed or get acquitted after trial, so the benefit will inure to a very small percentage.
The majority of detained defendants end up doing some time, whether in total or on a “time served” sentence. Is it in their interest to deny them credit for jail time? Did anybody ask them?
When I raised this question on the twitters, Doug responded by asking whether defendants should be given the choice of jail time credit or compensation. While this still puts money into the equation as a potential choice invoking the incentive not to dismiss a case, and there are issues as to whether a defendant’s choice while he’s still in will be the same choice he would make after he’s out, would giving the defendant a choice be a viable solution?
Is time served a problem at all, or simply a new “thing” to be turned into a problem because everything is a problem these days or prawfs have run out of real problems to write about, so need to invent new ones. And if it’s a problem, what can be done about it that doesn’t end up making the system worse?
*Tuesday Talk rules apply.