'The trouble with time served' — How pre-trial detention punishes the innocent

Crediting people for time served — giving criminal defendants “credit” against their sentence for the time they spend detained pretrial — is a deceptively harmful practice that punishes innocent people, argues University of Pennsylvania Carey Law School Prof. Kimberly Kessler Ferzan.

In a paper posted online entitled, “The Trouble with Time Served,” Ferzan applies a rights-based approach to time served, criticizing the current state of pre-trial detention. She points out, for example, that defendants who are found not guilty, or whose cases are ultimately dismissed, get nothing.

Far from a tool of justice, time served perpetuates “criminal justice pathologies,” Ferzan argues.

“Egalitarians, who seek to use time served to mitigate the injustice of releasing rich defendants on bail while poor defendants are detained, should be deeply troubled that defendants who are both poor and innocent have no recourse under the time-served model,” she writes.

Credit system aside, pretrial detention unjustly detains innocent people, negatively impacts trial outcomes, and induces pleas that turn the innocent into the guilty. “Time served makes us complacent about the harm we do by detention,” she writes.

Pre-trial detention often entails an invocation of rights, but it’s most often the defendant who suffers. Pre-trial detention isn’t framed as punishment, but it often functions that way: detaining someone because “we think” he committed the crime charge constitutes a form of pre-punishment, the author argues.

Calling time served a “woefully under-inclusive” form of compensation, Ferzan argues that credit for time served should be replaced with a system of monetary compensation. Unlike a time- served model, a compensation model “treats the innocent equally to the guilty” — a compensation model will reward innocent people for the unjust time they spent behind bars.

Additionally, instituting a compensation system may incentivize the state to lower pre-trial detention rates, as such a system would force the state to “bear the substantial costs of detention.”

Compensation also benefits defendants, who can use the money for bail. Most significantly, it will “sever the intuitive, conceptual linkage between detention and punishment.”

In other words, delinking pretrial detention from time spent in prison may provoke broader questions about the conditions of pretrial detention. “Sever the two practices, and we create the space to ask, how ought we to treat our presumed-innocent detainees?” Ferzan writes.

“Theorists of all perspectives should be deeply troubled by our current practice of giving time-served credit; far from having curative properties, it ultimately contributes to the disease of our current system,” Ferzan writes.

​​”Whether you endorse my reform proposal or offer a different one in its place, the current criminal justice reform agenda must consider the role that time served plays in creating and reinforcing injustice.”