How punitive is pretrial? Measuring the relative pains of pretrial detention

Abstract

The purpose of pretrial incarceration is not punishment. Yet, research demonstrates that pretrial detention elicits similar consequences as punishment. The goal of this study is to advance theory and policy discussions by enumerating the experiences and harms that emerge during pretrial detention and how closely they align with punishment. The analyses use the National Inmate Survey, 2011–2012 to compare the experiences of those held in pretrial detention to those incarcerated in jail or prison after a conviction. Individuals in pretrial detention report more disorderly environments than people in prisons, but also report more access to external social support and better views of staff legitimacy. The self-reported experiences of people in pretrial detention and those in jail as punishment are generally indistinguishable. The results provide considerable support for the argument that pretrial detention is inextricably punitive and, especially at its current scale, likely undermines system objectives of justice and public safety.