Pretrial
Pretrial Detention
Grade: 
Overview
The idea that an individual is innocent until proven guilty is intrinsic to the American justice system. In the past, individuals were generally allowed to maintain their liberty until guilt was proven in a court of law. Pretrial detention was used only in extreme cases of direct danger or where the individual’s appearance at trial could not be assured. Bail evolved as a way to allow individuals to maintain their liberty while also ensuring that they showed up for trial. However, bail has been transformed into an auxiliary system of punishment, where individuals charged with both serious and low-level offenses receive high bail amounts that make it all but certain they will be detained until their trial, which can take months or years. This leads to unjust outcomes, as research shows that individuals who are detained pretrial are more likely to plead guilty, regardless of their actual guilt.
The cash bail system also disproportionately impacts those who are unable to pay, causing many justice-involved individuals to sit behind bars simply due to their economic circumstances. Forcing someone to remain incarcerated, before they are found guilty, simply because they are unable to pay is not only unjust, it causes cities and counties to spend more tax dollars on pretrial incarceration. Reports show that in 2020, over 5,000 people were incarcerated in local jails in Mississippi, many of them simply because they were too poor to pay for their release.
Evidence shows that pretrial detention increases the likelihood that a person will end up back behind bars in the future, likely because the impacts of pretrial detention can destabilize an individual’s life. Research has also shown that individuals are just as likely to appear for court if they’re simply reminded about the court date. Cash bail should only be used in very particular circumstances where appearance cannot be assured by any other means. State bail policies should eliminate cash bail in most instances and establish a presumption of release for all but the most serious offenses where there’s a direct danger. When detention is necessary, all factors should be considered to reach this determination, and states should limit pretrial detention times to ensure speedy justice.
Elimination of Cash Bail
Has cash bail been eliminated as a primary determinant of pretrial detention or release in the state?
30 points
Presumption of Release
Does the state establish a presumption of release on recognizance for low-level offenses, a presumption of release generally, or a requirement for the least restrictive conditions of release?
20 points
Evidence-based Pretrial Detention Policies
Is pretrial detention based on an evidence-based decision-making process considering all aspects of the individual’s risks and needs?
15 points
Limits on Pretrial Detention
Does the state establish any limits on the length of pretrial detention?
15 points
Ability to Pay
When setting bail amounts, is an individual’s ability to pay considered?
10 points
Data Collection
Does the state collect and report data about the use of pretrial detention?
10 points
State Overview
The Mississippi constitution guarantees the right to bail except in limited cases.
Mississippi statute allows for the use of cash bail in most cases. The state places some limits on the length of pretrial detention, though news reports have highlighted instances of individuals remaining in jail pretrial for years. The rules of criminal procedure established by the state Supreme Court enumerate factors that must be considered when determining whether individuals should be detained pretrial. However, the guidelines also include sample bail amounts which are used as default bail schedules in some jurisdictions. Individuals are not afforded a right to appointed counsel at bail hearings, which further undermines their ability to obtain release pretrial. Mississippi’s policies could be improved by implementing evidence-based release policies that ensure detention is only used to protect individuals from a real and present danger, or ensure appearance at trial when no other means can do so. The American Bar Association’s guidelines on pretrial release provide an instructive model.
Details
Elimination of Cash Bail
Cash bail is authorized by statute in Mississippi for use in most cases and is still used throughout the state to guarantee pretrial release for individuals accused of a crime.
0/30 points
Presumption of Release
Mississippi rules of criminal procedure state that individuals should be released on personal recognizance, unless the court determines that is unlikely to ensure their appearance or their release would pose a “real and present danger to others or the public at large.” However, the rule as written is confusing as it points to the use of bond, and money bail remains the default in jurisdictions. The rules could be clarified to diminish the use of money bail in most cases.
10/20 points
Evidence-based Pretrial Detention Policies
The state’s rules of criminal procedure further require that courts impose the least onerous conditions of release. The rule requires that the court consider multiple aspects of the defendant’s situation, like their age, family situation, and previous criminal history, but some of these considerations, like the type of weapon used, are not relevant to the individual’s risk or likelihood to appear. The rule also includes sample bail amounts which can be used as a default bail schedule in many jurisdictions.
10/15 points
Limits on Pretrial Detention
Mississippi’s rules of criminal procedure do not impose specific limits on pretrial detention, but do require circuit judges to receive jail dockets every seven days and review any conditions of release for defendants who have been incarcerated for over ninety days. State statutes impose no limitation on the amount of time an individual may be detained before they are indicted.
5/15 points
Ability to Pay
Mississippi’s bail procedures do not make any allowances for an individual’s ability to pay bail amounts, and the use of bail schedules results in disparate outcomes based on an individual’s financial means. What might be an affordable bail amount for one person could be unattainable for another, resulting in de fact detention based on an individual’s ability to pay. Considering an individual’s financial means would ensure that people aren’t detained solely for the inability to pay.
0/10 points
Data Collection
While the state publishes data regarding prison admissions and populations, no such data exists for jails in Mississippi, making it difficult for policymakers to evaluate the extent to which pretrial detention is used in the state, as we as its effectiveness. Implementation of a reporting requirement would better guide policymakers in this area.
0/10 points
Sources
15. https://law.olemiss.edu/thousands-of-mississippians-too-poor-to-make-bail-making-them-more-vulnerable-to-coronavirus/
16. Pretrial Justice Institute 50 State Survey, NCSL 50 State Survey, NCSL 50 State Survey of Release Conditions
17. ABA, Standards for Pretrial Release.
18. Miss. Code Ann. §99-5-1
19. Miss. R. Crim. P. 8.2
20. Ibid.
21. Ibid.