PRETRIAL DETENTION and the VALUE OF LIBERTY

“Unless we are willing to confront the difficult tradeoffs that preventive detention requires, we risk the possibility that vague consequentialist reasoning will serve to cloak other, and uglier, forces.”

SANDRA MAYSON, Professor of Law

In “Pretrial Detention and the Value of Liberty,” published in the Virginia Law Review, Mayson and Megan T. Stevenson of the University of Virginia School of Law break new ground in confronting “the question of what degree of risk justifies pretrial detention if one takes the consequentialist approach of current law seriously.” The authors note that there is “nothing approaching a consensus answer to this question,” particularly since it “requires an explicit tradeoff between liberty and security, values that are infrequently measured and difficult to compare.”

The authors survey existing law and present a conceptual framework — “a straightforward consequentialist one” based on doctrine that “establishes a simple cost-benefit framework” — for answering the question and propose “a novel empirical method for estimating the relative personal cost of incarceration and crime victimization,” which they call “relative harm valuation” (RHV). The results of the survey, which asks respondents to choose between being the victim of specific crimes or being incarcerated for varying time periods, show that the “stated consequentialist rationale for pretrial detention cannot begin to justify our current detention rates.”

What Degree of Risk Justifies Detention?

Mayson and Stevenson begin with an overview of pretrial preventive detention, which is based in the constitutional principle — as interpreted by the Supreme Court — that such detention is authorized “when the government’s interest in security outweighs the individual’s interest in liberty.” Determining what degree of risk justifies detention, however, is challenging because of “the difficulty of valuing the intangible harms in the balance,” write Mayson and Stevenson.

The authors discuss United States v. Salerno, which “appeared to authorize pretrial preventive detention on pure cost-benefit — or consequentialist — grounds,” but left open a crucial question: “How dangerous must a person be to justify the state in locking her up for the greater good?”

Mayson and Stevenson note that the Bail Reform Act of 1984 also implements a cost-benefit framework for preventive detention in federal statutory law, although in practice it has led to high detention rates “without rigorous cost-benefit analysis.” State and local laws governing pretrial detention similarly provide minimal guidance about what degree of risk justifies detention.

“To the authors’ knowledge, no statute or court has articulated a risk standard that anchors a numerical probability to a defined time period,” write Mayson and Stevenson.

The authors make clear that the goal of the article is not to endorse the current cost-benefit framework for pretrial detention but rather to operate within it. The costs of detention fall not only on the person deprived of liberty but also on their loved ones, as well as on taxpayers who foot

the bill for incarceration. The primary benefit of detention is to prevent future crime, with the primary beneficiary being the person who would otherwise be a victim.

“The point at which detention averts greater harm than it inflicts is a function of (1) the costs of detention, (2) the number and nature of crimes that detention will avert, and (3) the costs of those crimes,” write Mayson and Stevenson.

The authors note that previous cost-benefit analyses “although valiant, rely heavily on the dubious translation of intangible costs — liberty deprivation and criminal victimization — into monetary terms.” Such an approach, they write, introduces both “unnecessary noise” and bias.

Relative Harm Valuation

Mayson and Stevenson deploy RHV, which “aims to estimate the relative harm of incarceration versus crime victimization while avoiding some of the distortions that plague traditional cost-benefit and contingent-valuation methods.” They call their method “intentionally simple, and it echoes John Rawls’ famous notion that the principles of justice are those that a rational person would choose behind a ‘veil of ignorance’ as to her own traits and position in society.”

RHV presumes that the cost of crime to the victim and the cost of detention to the detainee are the “two costs in the preventive detention calculus that swamp all the others.” The authors’ survey method asks respondents to compare these two central harms directly against one another.

The survey results reveal that respondents find incarceration to be “an incredibly harmful experience” with most choosing to be crime victims over even short periods of incarceration. Regarding specific crimes, “[t]he median respondent says that a single day in jail is as costly as a burglary, that three days are as costly as a robbery, and that a month in jail is as costly as an aggravated assault.” These results were quite similar across race, gender, and socioeconomic class as well as for those who have and have not had personal experiences with incarceration or crime victimization.

“The severity of the harm that incarceration inflicts (according to our median respondent) means that preventive detention can only be justified on consequentialist grounds if there is a very high risk that the person would otherwise commit serious crime,” write Mayson and Stevenson.

The Discrepancy Between Theory and Practice

This extremely high risk-threshold raises two primary questions according to Mayson and Stevenson.

“The first is when, if ever, we can identify risk that is grave enough to warrant detention under the survey-derived standard,” they write. “The second is whether our basic premise

— that the consequentialist analysis must not discount the welfare of arrestees relative to crime victims — might be misguided.”

Mayson and Stevenson consider whether actuarial pretrial risk assessment tools might be capable of identifying individuals who pose a sufficient risk to warrant detention and finds the prognosis “not promising.” They then address the omissions of murder, rape, and domestic violence from their analysis as they wouldn’t expect the RHV survey method to function well for such crimes.

“It is not meaningful to ask how long someone would stay in jail to avoid being murdered; most everyone would agree to a lifetime,” they write.

That said, the authors note that their methodology could be used even for such crimes “if one were willing to make an assumption about how the harms of these crimes compare to the ones analyzed here.” The specific circumstances of a given case may also permit a court to identify those who present a substantial enough risk to justify preventive detention.

“Given the high risk-threshold for preventive detention and the limits of our predictive abilities, pretrial detention on the basis of dangerousness should be rare,” write Mayson and Stevenson. “But it is not.”

Each day in the United States, nearly half a million individuals are detained pretrial — an astonishing number that is understated as it is a snapshot at a single moment in time; over the course of a year, more than 10 million individuals cycle through U.S. jails. While the reasons cited for pretrial detention vary, the authors hypothesize that “pretrial detention rates are high — and will remain high in the absence of constraints — in large part because judges, lawmakers, and ordinary citizens discount the well-being of potential detainees relative to the well-being of potential crime victims.”

The authors urge caution in this practice as “the current scale of pretrial incarceration suggests that the retributive impulse has been running without check in an environment in which it should be, at most, an occasional and suspect guest.”

Mayson and Stevenson’s survey results suggest that the current system is “inflicting pretrial punishment, and they counsel a rethinking of pretrial law and policy.”

“The state’s authority to deprive a person of freedom on the basis of potential future harm is one of its most fearsome powers,” conclude Mayson and Stevenson. “Unless we are willing to confront the difficult tradeoffs that preventive detention requires, we risk the possibility that vague consequentialist reasoning will serve to cloak other, and uglier, forces.”