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April 2, 2022

"The Trouble with Time Served"

The title of this post is the title of this new article recently posted to SSRN and authored by Kimberly Kessler Ferzan. Here is its abstract:

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial.  In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice.  In fact, however, crediting detainees for time served is perverse.  It harms the innocent.  A defendant who is found not guilty, or whose case is dismissed, gets nothing.  Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive.  Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions.  The bottom line is this: Time served is not a panacea.  To the contrary, it contributes to criminal justice pathologies.

This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted.  The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds.  Time served should be abandoned.  Detainees should be financially compensated instead.  Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms.  Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.

April 2, 2022 at 08:36 PM | Permalink


About 10 years ago, my home state of Kentucky realized it had a serious problem with Judges awarding credit against sentences for time served before guilty plea or trial convictions (also called "jail credit" here). Under Kentucky law, the individual counties bear the expenses of pre-trial detainees. But the day after sentencing, the state Department of Corrections becomes financially responsible for bearing the cost of the sentence. The rub comes when the sentencing Judge awards "jail credit" against the state sentence. The Judge Executives for the 110 counties out of a total of 120 counties that have jails realized that the state should be reimbursing then for the pre-trial time being credited against the state sentence, but they never had. Notably, in 2022, Kentucky is down to 82 counties having jails. For most counties, operating the county jail is the single largest expense for the County's Fiscal Court. The Judge-Executives Association tried to negotiate on this issue with the Legislature for several years, to no avail. The state simply stiffed them and said that they didn't have the money to pay. Frustrated, the 110 counties filed a lawsuit in Franklin Circuit Court against the Commonwealth of Kentucky and the Ky. Department of Corrections, seeking reimbursement of $110 million for 10 years, a total of $1.1 billion. The lawsuit was quickly and quietly settled, without the state paying any money to the 110 counties. Instead, the Dept. of Corrections began requiring that all Class D felons (the lowest level felony, with a sentence of 1 to 5 years) serve their sentences in county jails, rather than in state prisons. The Dept. of Corrections pays the jails a per diem for housing state inmates, which helps the county pay for its jail and keep it operating. Of course, it is a huge disservice to the inmates, who have few opportunities for recreation and almost no programming (not even G.E.D. classes), while serving their time in a county jail. Interestingly, because of COVID-19, the Fayette County Detention Center in Lexington deliberately decided to lower their head count of inmates to under 1,000 per day, from prior (before March 2020) weekend levels of up to 1,550 inmates. Fayette County asked the Ky. Dept. of Corrections to pick up all of their Class D felons and take them somewhere else. Some were redistributed to county jails 250 miles away, on the other end of the state, where they get few if any visits, and most of those over the Internet, not in person.

Posted by: Jim Gormley | Apr 2, 2022 9:26:08 PM

Interesting, but I can't get behind financially compensating the guilty as a general matter. If they are guilty, then we can retrospectively determine that their commission of the crime was a but-for cause of the pretrial detention (plus their risk of flight, harm, etc.) That pretrial detention imposes significant costs on society, and the costs thereof can be seen as an additional harm the guilty detainee's conduct has foisted on society.

Given the guilty detainee's fault in at least majorly contributing to the fact of their detention, and the costs that detention imposes on society, compensating the guilty financially would be inappropriate as a general matter.

Posted by: Jason | Apr 2, 2022 10:32:27 PM

Any paper that starts with the falsehood of "overcriminalization of people of color" without addressing the huge (5 to 8 times greater) prevalence of black-on-black and black-on-white violent crime, discredits itself from the start.

Addressing overcriminalization is one thing and a worthy pursuit, but not through a racist lens (black racism is just as or even more real than any white racism that still exists). All races are victims to overcriminalization. Stop this nonsense framing of any and all arguments regarding criminal justice.

Posted by: restless94110 | Apr 3, 2022 5:51:03 AM

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