Innocent until proven guilty. You don’t have to watch many reruns of "Law & Order" to understand that these four words make up a fundamental pillar of our legal system. In fact, from the Justinian Codes of the Roman Empire to English Common law, the presumption of innocence dates back more than a thousand years.
But in jails here in Louisiana and across America, this principle is turned on its head by the practice of pretrial detention. Every year, millions of people languish in jail based on the mere accusation of a crime. They are torn away from their families, separated from their jobs and communities — even though they have not been convicted, been to trial or even seen a judge.
Jailing presumably innocent people — most of whom stand accused of minor offenses and simply lack the money to pay bail — is antithetical to our most fundamental constitutional principles of individual liberty. It is also counterproductive, driving more economic instability, crime, and incarceration, rather than less.
A 2015 study by the Vera Institute for Justice found that Louisiana had the highest per-capita pretrial incarceration rate in the nation.
Black and brown people, their loved ones, and those without the money to afford bail or quality legal counsel suffer the worst harms. Even a few days of unnecessary incarceration can cause someone to be fired from their job, lose custody of their children, or be evicted from their home.
The fight to end wealth-based pretrial detention is intertwined with the struggle for racial and economic justice. And Louisiana, with its outsized reliance on pretrial incarceration, is on the front lines.
That is why it’s good news that some communities are taking steps to address two of the main drivers of pretrial injustice: money and time.
In East Baton Rouge, which traditionally had among the state’s highest rates of pretrial detention, local officials are taking steps to reduce the amount of time people spend in jail waiting to be charged. Under a new process spearheaded by District Attorney Hillar Moore with support from judges and other criminal justice system stakeholders, prosecutors will be required to present a defendant to a judge within 72 hours of being detained. Previously, according to The Advocate, people incarcerated in the parish prison who had not been convicted of a crime were typically held for approximately two months, or 55 days. We’ll be watching closely to ensure local officials follow through on this commitment and implement these changes fairly and equitably.
Equally important is addressing the role that money — specifically, cash bail — plays in the criminal justice system. Cash bail causes people to be incarcerated based on how much money they have rather than an impartial review of the evidence against them. The cash bail system also weakens public safety by allowing those with financial resources to walk free with little or no scrutiny, while funneling thousands of poor people into jail.
In New Orleans, the Vera Institute of Justice is working with local leaders and advocates to combat money injustice and the city has already virtually eliminating money bail for municipal offenses.
Now we need to help these seeds of progress grow across the state.
Meaningfully addressing the epidemic of pretrial incarceration requires sweeping reforms on both the state and local level, including at the State Capitol.
For instance, Louisiana law allows prosecutors to wait 45 days to make a charging decision on a misdemeanor after a judge has fixed bail, 60 days for a felony, and 120 days for a capital offense. The law also allows an additional monthlong delay before a defendant must appear before a judge for arraignment.
This makes Louisiana significantly out-of-step with nationally recognized best practices, which call for charges to be filed within 30 days of a defendant’s initial appearance and for defendants to go before a judge within 48 hours of that charge.
Caging people who have not been convicted of a crime is a wasteful and counterproductive practice that devastates our families and communities. It’s long past time to end it.
Chris Kaiser is the advocacy director of the ACLU of Louisiana.