Tuesday Talk*: Time To Get Rid Of Time Served?

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.

17 thoughts on “Tuesday Talk*: Time To Get Rid Of Time Served?

  1. JR

    My answer to your questions would be, no. I can not see where the DA’s office should be tagged with the costs of detention. It sounds like a good idea in some ways, make that department pay and maybe they will want to lower the hit on the budget. But this all assumes the DA office and the courts are being run as a business. While a public service should be be run with at least some idea of spending the public’s money well, it is not a business with profit and loss.

    But if this idea came into play….. If I can’t afford bail, how about I sit in jail until what they would owe me exceeds my bail. Do I then get out? And if I do get out, what reason would I have to come back to court? Or maybe I did post bail, but before that they had me in jail for a time and that money paid for may bail. After getting the cash, I’m at out nothing, I can just run away.

    Overall I think it is bad idea. Let’s assign a dollar value to the jail time and tag the costs to a place that makes no sense because we want to change the behaviors of the DAs office. At the same time ignoring what the time/money trade off means to accused.

  2. Carlyle Moulton

    This issue under discussion is not the only case where there are perverse incentives in both the current situation and in any proposed variation to it.

    You have probably guessed that IANAL and am quite aware that I do not have the right kind of brain for it, but over the years I have collected many media articles that I have read and filed for future access under the sub category “Justice Is Injustice”.

    [Ed. Note: You seem like a nice enough person, Carlyle, but if you can’t manage to come within a million miles of the subject at hand, this really isn’t a good place for you to comment. I’m trying to be nice here and hope you take this in the manner offered.]

  3. phv3773

    The problem arises from detaining the presumed innocent without good cause, and not honoring the promise of a speedy trial. Treat the disease, not the symptom.

    1. SHG Post author

      Absolutely. But what to do with those detained for 12 priors and 27 bench warrants on a new murder?

  4. Miles

    One of the hardest things to explain to a defendant who spend any significant time in before trial or his case is dismissed is that that part of his life is gone and there’s no getting it back. But introducing money into the mix provides a very dangerous incentive for prosecutors.

    Would defendants rather lose a year of their life to pretrial detention or ten years to a game of hide the Brady? I’m not unsympathetic to the question, but I see money as the root of a great many years in prison (which will disproportionately impacts people of color too).

  5. Jeffrey M. GAMSO

    How about this:

    If the charges are dismissed or the person’s acquitted give cash. Lots of cash.

    If the person’s found guilty – by plea at trial – cash and credit for time served,

  6. Drew Conlin

    I looked it up most states can charge inmates for time in jail. I presume jail to mean county and city jails.
    This might be a callow question but wouldn’t paying a confined person simply be offset by “ rent due..?
    And if someone is not unreasonably suspected of a crime why should they be compensated if found not guilty?

    1. SHG Post author

      I don’t know where you got this information, but it’s wrong. Most states do not charge for pretrial detention.

        1. SHG Post author

          What was “wrong” was the statement that most states do this (they don’t) and that dismissed or acquitted defendants aren’t exempt (they are). I appreciate that it’s hard to resist the impulse to respond, BUT KENTUCKY, but that’s why this is a law blog, where lawyers realize there are 51 major jurisdictions, each with their own flavor of law and practice.

  7. Drew Conlin

    Message to self: when reading SJ , read slowly, read as many times as necessary to understand as much as capable to understand…,
    Comment only after stringent adherence to above paragraph…,or maybe don’t comment!!

  8. Chris

    The premise of this post is silly. The premise is that academics make up fake problems to write about when, in fact, it looks like certain lawyers are so used to the status quo that they’re numb to an obvious, uncompensated harm to some defendants and all too comfortable with the fact that the justice system really doesn’t make much sense to the people, in whose name all this is done.

    1. SHG Post author

      Some of us think about these things because this is what we do everyday. Some of you lack and knowledge, education, experience or desire to think about such things. Don’t feel bad. You’re doing the best you can.

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