Rethinking Pretrial Detention

By Judge JaPaul J. Harris

“The greatness of a community is most accurately measured by the compassionate actions of its members”  – Coretta Scott King

0521-Jail-Cell-WaitingNo decision is tougher and more consequential than the decision regarding pretrial detention. We know that while in jail people risk losing their jobs, not getting needed medication, losing housing, and losing custody of their children.1 Studies have shown that there are racial disparities in bail setting.2 Studies also show that people who cannot afford bail receive harsher outcomes.3 With this decision there are many questions that the Court thinks about. Will the defendant return to court? Will the defendant commit additional offenses jeopardizing the safety of the community? Will the pretrial detention destabilize the defendant’s family leading to other collateral consequences? This issue of the Hennepin Lawyer explores the law and community, and this article will focus on how the pretrial release decision directly affects the community. The defendant is a member of the community and the effect of detention on the defendant’s family has a direct effect on the community. However, public safety is also front of mind when making these decisions. In the best of times, these decisions are very consequential as they have the ability to destabilize families and the community. In this article, I will (1) explain how a pretrial decision is made, (2) discuss this decision-making process in the context of a global pandemic, (3) discuss this decision-making process in the context of a racial reckoning, and (4) discuss how we can rethink the concept of public safety as we move forward.

The Legal Framework of Bail and Release in Minnesota

In Minnesota, defendants have a constitutional right to unconditional bail except in cases charged as first-degree murder.4 Judges are prohibited by both the federal and state constitutions from imposing “excessive” bail.5 Bail is not excessive unless it is more than the amount reasonably necessary to guarantee the defendant’s appearance for trial.6 It is also unconstitutional for judges to set a monetary bail amount for a defendant that can only be met by a cash deposit for the full amount of the bail.7 If a defendant is not able to pay the bail amount imposed by the court, that defendant remains in custody until his or her case is resolved. The Minnesota Rules of Criminal Procedure presume that a defendant will be released unless the court determines that the defendant’s release would endanger public safety or will not reasonably assure future appearances. The judge must consider the nature and circumstances of the alleged offense; the weight of the evidence; family ties; employment; financial resources; character and mental condition; ties to the community; defendant’s criminal history; prior history of appearing in court; and the safety of the community, alleged victim, and others when making this decision.8 The Minnesota Judicial Council approved Policy 524, requiring judges to use an evidence-based risk assessment tool when determining pretrial release. For many years, the court in Hennepin County has been a trailblazer in the use of pretrial release instruments. The idea behind using these tools is that they will provide information that will help predict whether a person will return to court for another hearing or commit a crime during the pretrial period. The tool is meant to be a predictive tool that removes bias from the decision-making process. 

In practice, the arraignment and first appearance hearings are where these decisions are made. At these hearings, the information available to the court includes the criminal complaint, the bail evaluation tool, and the argument of the parties. In making the decision, the court has three options: (1) release the defendant without bail and without conditions (also known as release on own recognizance), (2) release the defendant with conditions (also known as conditional release), or (3) set monetary bail. When a defendant is released with conditions by the court, the court is required to set an alternative “unconditional bail,” which is an amount the defendant can pay to be released with no other release conditions other than payment of the monetary bail amount. The court is not permitted to set monetary bail for the sole purpose of encouraging a defendant to accept conditional release.9

COVID-19 Pandemic and Pretrial Detention Decisions

“It’s going to get worse”– Dr. Anthony Fauci

March 2020—the month the country came to a halt and COVID-19 was thrust into our consciousness. On March 11, 2020, Dr. Anthony Fauci, an infectious disease expert at the Centers for Disease Control, testified before the U.S. House of Representatives Oversight and Reform Committee about a contagious virus that had brought China and Italy to a halt. On that same day, the World Health Organization officially classified COVID-19 as a pandemic. On March 13, 2020, Gov. Tim Walz signed Emergency Executive Order 20-01 which declared a peacetime state of emergency and urged Minnesotans to practice social distancing; instructed nonessential workers to stay home; closed schools, bars, restaurants, and entertainment venues; and prohibited group gatherings. The Minnesota Supreme Court issued Administrative Order 20-8001, imposing limitations on the operations of the Minnesota judicial branch.10 What followed was a summer, fall, and winter of fluctuating COVID-19 infection rates, an increasing number of deaths, multiple extensions of the peacetime state of emergency, and multiple amendments to Minnesota Supreme Court Administrative Order 20-8001, which culminated in a pause on trials in late November 2020, when the COVID-19 pandemic reached a critical stage. 

The impact of COVID-19 cannot be exaggerated. It triggered an abrupt lockdown of courts, which delayed court hearings resulting in a backlog that continues to grow. The COVID-19 pandemic forced the Minnesota judicial branch to take extraordinary steps to maintain court operations while shifting almost all of the work away from traditional courtrooms and into packed Zoom “breakout rooms.” As of March 20, 2021, the COVID-19 virus has infected over 400,000 Minnesotans, leading to over 6,000 deaths.11In Hennepin County, 99,241 people have been infected and 1,633 people have died.12 The COVID-19 pandemic has affected our legal community in challenging and far-reaching ways. Addressing the COVID-19 pandemic in pretrial detention was a multilayered approach. 

Whatever complications the pretrial detention system had in the best of times were exacerbated by the COVID-19 pandemic. Given the nature of the jails, COVID-19 presented a particular threat to its population. Public health officials advised people to maintain social distance, wear masks, and avoid large gatherings, but the jail experience is typically communal.  Inmates are often housed in large dormitories or shared cells, eat in dining halls, and share shower and toilet facilities. Each of these factors increases the risk for COVID-19 infection, developing severe symptoms, and death. Furthermore, research has shown that a higher percentage of inmates in jail are “high risk” for COVID-19 due to age and preexisting health conditions compared to the general population. Jails also have large numbers of people entering and leaving, which creates further possibility of exposure. 

Because the jails were especially vulnerable to COVID-19 transmission, the court needed to examine the jail population and see if it could reduce the population by releasing nonviolent offenders. This needed to be done with public safety also in mind. The Hennepin County Adult Detention Center tested 8,410 inmates and had 351 positive tests.13 Over the past year, the population at the Detention Center is about 45 percent lower than it was at the start of the COVID-19 pandemic.14 The  facility’s population was 303 on March 13, 2020, the day the governor signed the peacetime emergency order; within a month of the order, the population was down to 172, and within two months, it was down to 111.15 On July 22, 2020, the population was at its lowest point of 63.16 The Detention Center had an 85-person median daily population in 2020.17 For context, it had a median daily population of 417 in 2015, 406 in 2016, 409 in 2017, 424 in 2018, and 349 in 2019.18 It had a median daily population of 409 people in the five years preceding 2020.19 While inmates at the Hennepin County Adult Correctional Facility are not there awaiting the outcome of their cases, this data demonstrates the justice system’s attempts to decrease the population of people in jail.

The significant reduction in the jail population was the result of a collaborative effort. First, prosecutors looked over cases to see if inmates awaiting trial could be released due to the pandemic. The Hennepin County Attorney’s Office determined which county jail inmates qualified for possible release. Law enforcement agencies throughout Hennepin County suspended most jail bookings for low-level crimes to avoid increasing the population of the jail. The Hennepin County court issued an order allowing the release of some inmates from the county workhouse to slow the transmission of COVID-19. The Hennepin County Community Corrections Department worked to identify and release all inmates who qualified under the court’s order. 

While there was a considerable reduction of the jail population, new cases were still being filed and the court needed to assess each defendant’s risk while balancing his or her liberty interest. The decision on pretrial detention took into account not only public safety and the likelihood that the defendant would return to court but also the consequences of a defendant’s being exposed to a highly contagious virus while being detained as the accused. The pandemic shifted the balance of liberty interests, whether consciously or unconsciously. With this shift, public safety remained a top priority. When presented with evidence that a defendant posed a risk to the community’s safety, the State continued to seek bail as it had before the pandemic, and the court continued to set bail in those cases. The significant decline in the jail population can be explained, in part, to the consideration of the medical risks associated with individuals remaining in custody during the COVID-19 pandemic. Even if the jail took extensive precautions, each time a new person was placed in custody, COVID-19 risks were introduced. This new analysis did not disregard the law, but it fell squarely in the information that the court could consider. Minnesota Rule of Criminal Procedure 6.02 subdivision 2(m) provides that the court may consider the safety of the community. This was traditionally interpreted to consider community safety in light of the defendant’s reoffending. However, in the context of the COVID-19 pandemic, it was interpreted to consider the community’s safety in the event of the virus’s spread. What this meant is that in many circumstances the State did not seek bail that could lead to detention in the same way it would have prior to the pandemic. In practice, these were defendants who had not committed serious or violent crimes, defendants who presented some risk of flight, but no threat to the public, and defendants who were highly vulnerable to the COVID-19 virus. 

The traditional analysis of risk of flight and public safety concern was being weighed against the defendant’s vulnerability to COVID-19. The result was that more people were either conditionally released or released on their own recognizance. With the court moving to the virtual world, these defendants were able to appear in court from home. 

Speeding Along with a Pandemic—The Tension between Public Health and the Constitution

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” Article VI, U.S. Bill of Rights

In the wake of the COVID-19 pandemic, the court was closed for extended periods of time, and the pretrial detention decision raised constitutional concerns for those who were detained, in addition to the public safety and flight issues. Because the Minnesota Supreme Court issued an order suspending jury trials, issues were raised around the possible violation of a defendant’s right to a speedy trial. Both the United States Constitution and the Minnesota Constitution guarantee criminal defendants the right to a speedy trial.20 In Minnesota, Minnesota Rule of Criminal Procedure 11.09(b) outlines the requirement to adhere to the defendant’s right to a speedy trial.21 “A defendant has no duty to bring himself to trial.”22 The U.S. Supreme Court, in Barker, set out four factors which courts are to consider in analyzing claims of denial of the speedy trial right. These factors are the length of delay, the reasons for the delay, the defendant’s assertion of the right, and the prejudice to the defendant resulting from the delay.23

The COVID-19 pandemic raises an important question around the issue of speedy trial. How long is too long? Due to the rare and unprecedented nature of the COVID-19 pandemic, there is not clear case law on analyzing the speedy trial demand in this context. There is abundant case law regarding analysis of the speedy trial demand in light of an individual health concern, but the case law has mixed results. Against the setting of COVID-19 it is still unclear how much delay will be allowed under the Constitution. As we begin to return to the courtroom and resume trials, defense attorneys will raise speedy-trial challenges. The number of these challenges would have increased if the court did not adapt to consider the effect of COVID-19 in its release decisions. Moreover, Article VI of the Constitution also outlines a right to a public trial, which will also be the source of much litigation in the future as we adapt to this legal world after COVID-19.  

Global Pandemic + Racial Reckoning = New Focus on Pretrial Justice

“Please, I can’t breathe.” – George Floyd

In many ways, the COVID-19 pandemic has exposed the fundamental flaws of pretrial detention. However, what happens when we add the issues of a reckoning on the issue of race and social justice? On May 25, 2020, Darnella Frazier posted a nine-minute video to Facebook showing white Minneapolis police officer Derek Chauvin pressing his knee into George Floyd’s neck behind a squad car outside a south Minneapolis convenience store. Mr. Floyd died, and what followed were nationwide protests and a new reckoning with race in America and in the Twin Cities. This article is being drafted at the start of the Derek Chauvin trial; however, this article is not meant to dive into the trial and the possible result, but rather to show that, in addition to addressing a deadly global pandemic, Minneapolis was ground zero for a reckoning with racial discrimination. There have been high-profile killings of Black men in the past by the police in the Twin Cities (e.g., Jamar Clark and Philando Castile); however, the worldwide response to the killing of George Floyd has been different. There has been a renewed focus on the disparities that lead to these deadly results. The disparities in the court system were front and center. 

Even with the move to release nonviolent individuals during the COVID-19 pandemic, there have been racial disparities. Earlier in this article, I stated that the Hennepin County Adult Correctional Facility population was 303 on March 13, 2020, the day the governor signed the peacetime emergency order. I did not say that African Americans made up 47.1 percent of the population (143).24 Within a month of the governor’s order, the population had dropped to 172, with African Americans constituting 59.8 percent of the population (103 inmates).25 Within two months, the inmate population had been reduced to 111, with African Americans constituting 63 percent of the population (70 inmates).26 Hennepin County Adult Correctional Facility’s population hit its lowest point at 63 on July 22, 2020, but African Americans made up 61.9 percent of the population (39 inmates).27 In Hennepin County, African Americans account for 13.9 percent of the population. Again, these figures are from the Hennepin County Adult Correctional Facility, which is not the facility where defendants are held pending trial, but they are meant to highlight the disparities that exist. While the total number of inmates was decreasing, the proportion of African American inmates was increasing. When the disparities in COVID-19 cases are layered on top of the jail disparities, the situation becomes even more concerning. African Americans make up 7 percent of the Minnesota population but account for 9 percent of COVID-19 cases, 12 percent of COVID-19 hospitalizations, and 12 percent of COVID-19 intensive care unit admissions.28 When other people of color are included, the disparities become even more pronounced. 

Before the pandemic and the unrest after the killing of George Floyd, the pretrial detention system was the subject of criticism and a push for reform, but COVID-19 has renewed the push for reform. An example of this new interest in pretrial release can be seen in the efforts of the Minnesota Freedom Fund. In the wake of the killing of George Floyd, the organization has raised over 30 million dollars to assist its mission of paying the criminal bail and immigration bonds for those who cannot otherwise afford bail.29 The effectiveness of pretrial release tools is also being debated. Minnesota has a policy of using pretrial release tools because research can validate them and eliminate information with a biased outcome. The tool’s purpose is to attempt to remove bias from pretrial decisions and to be more predictive. However, the new push for pretrial release contends that the tools are biased because they are derived from data reflecting the structural racism and institutional inequity that impact our court policies and practices, and that using the data in these tools deepens inequity. The pandemic and killing of George Floyd have thrust the issues of systematic racism into the forefront of our profession in a way that we cannot avoid. 

Post-Covid-19, Where Do We Go from Here?

“The world’s going one way and people another!”– Poot, HBO “The Wire,” Season 4, Episode 10

Many decisions were made quickly at the start of the COVID-19 pandemic in response to a serious threat. Throughout the pandemic, the environment has been constantly changing, necessitating flexibility and innovation, two abilities for which the court is not traditionally known. The court and the justice system as a whole have been required to address 

COVID-19’s shifting public health threat while also addressing public safety concerns. We are now a year removed from the initial COVID-19 restrictions. We are in an atmosphere in which vaccines are being distributed, infections and deaths are decreasing, and we are moving to gradually reopen the court and getting back to in-person hearings. This is still a slow process, but the potential of sitting in a courtroom with other people will become a reality. As we approach the return to the courthouse, we are confronted with a number of challenges. How will we use the technology we have acquired? How are we going to address the case backlog? Are we going to go back to business as usual, or will we use what we learned last year to incorporate technology into our business processes in order to be prepared for future uncertainty? Will we push forward full-throttle or will we strike a balance between public health and constitutional concerns? How are we going to treat the pretrial detention determination? 

Over the last year, we have reduced jail populations to historic lows and released a large number of people who would have been held on bail in the past. Are we going to revert to old habits and start filling jails again? One of the lessons I believe the past year has taught us is that pretrial detention frequently occurs not because of a genuine risk of flight or future danger, but because a defendant is unable to satisfy bail conditions. Using technology such as text message reminders and Zoom, defendants were showing up to court and not reoffending. At the same time, we kept the jail population low and ensured the safety of those who were detained.

More importantly, by utilizing the various release options we also limited the collateral consequences of being in custody pending trial. In recent months, there has been a focus on the rise in certain crimes in the community, which may lead some to advocate for the misguided get- tough-on-crime dogma. As restrictions are lifted, we must continue to measure the risk to public safety in making our release decision in the way that allowed us to reduce the jail population. We should take the changes we made in response to the pandemic, as well as the lessons we learned from those changes, and continue to develop lasting change in how we respect the dignity of those who appear in front of us, while also protecting public safety.

Judge-HarrisJudge JaPaul J. Harris was appointed to the Second Judicial District by Gov. Mark Dayton in June 2018. He previously served as a judicial referee in Hennepin County from 2012 to 2018. Judge Harris serves as a member of the Minnesota Supreme Court Committee for Equality and Justice, where he serves as the chair of the education committee. In addition to his bar activity, Harris coaches youth sports at Jimmy Lee recreation center in Saint Paul.


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