“Innocent until proven guilty” is a foundational principle of the American legal system, and a refrain even a casual watcher of courtroom dramas will recognize. But across the country and especially here in Louisiana, this promise has been eroded by a criminal legal system that routinely locks presumptively innocent people in jail for weeks, months and even years.
Louisiana’s skyrocketing pretrial incarceration rate is an urgent and worsening crisis, which Louisiana officials have the power to solve.
The ACLU of Louisiana’s two-year study of thousands of jail records statewide found that Louisiana’s pretrial incarceration rate is now three times the national average and the highest of any state on record since 1970. And because the Sixth Amendment right to an attorney does not apply before defendants are formally charged, people are stuck in limbo for months with no way to challenge their confinement. We found that 57% of people in jail had been arrested for nonviolent offenses, and that people had spent, on average, five and a half months behind bars without trial or conviction.
One of the reasons Louisiana is such an outlier when it comes to jailing people without charge is that state law encourages it. Under current law, a person can be jailed up to 120 days before a prosecutor decides to review the case. Even those arrested for a misdemeanor can be held for 45 days.
But this year, Louisiana legislators have an opportunity to take a long-overdue step toward addressing this injustice. House Bill 46, introduced by state Rep. Ted James, D-Baton Rouge, would protect Louisianans’ constitutional rights and improve the functioning of the justice system. The bill would limit incarceration without charge to five days in many cases and 30 days for the most serious offenses, codifying the right to counsel at the preliminary hearing.
For families, communities, and taxpayers, these reforms can’t come soon enough.
Pretrial incarceration has devastating consequences for people of color, and may even contribute to higher crime rates. Just a few days of incarceration can mean losing one’s job, losing access to stable housing, and even losing child custody. In this way, Louisiana’s pretrial system contributes to the cycle of poverty, unemployment, and incarceration we’ve seen in Black and Brown communities.
The racial disparities exposed by our study were staggering: Black Louisianans are more than twice as likely to be jailed pretrial than white Louisianans and, overall, Black Louisianans in the survey sample had spent 36% more time than white Louisianans in jail pretrial.
All of this also comes at an extraordinary cost to taxpayers. Pretrial incarceration costs an average of $52 per person per day. That adds up to a $290 million price tag for Louisiana taxpayers each year.
It’s been said that in America’s criminal legal system, it’s better to be rich and guilty than poor and innocent — and nowhere is this more true than in Louisiana’s jails. The people trapped in this broken system are predominantly Black, overwhelmingly poor, and most are accused of nonviolent offenses. They are in jail simply because they cannot afford to buy their freedom.
Addressing Louisiana’s pretrial incarceration crisis will require comprehensive reforms at the state and local level. Moving forward, state and local officials must also take steps to reduce arrests for low-level offenses like marijuana possession, and ensure that no one is ever jailed simply because they cannot afford to pay bail.
HB46 represents a sensible first step in the right direction by limiting the amount of time the state may jail a person without criminal charge. This legislation would also save millions of taxpayer dollars by reducing the total number of days spent in jail.
If we want to achieve an equitable, constitutional and cost-effective pretrial system here in Louisiana, we must implement a comprehensive set of reforms. Let’s start with HB46.
Alanah Odoms is executive director of the American Civil Liberties Union of Louisiana. Chris Kaiser is the group's advocacy director.