16.3.2 Unsentenced detainees as a proportion of overall prison population
Pretrial detainees comprise the majority of inmates in the US jail system, largely due to inability to afford bail costs. For example, the median bail cost for a felony is $10,000, which is the average income a person receives in total over eight months. The average income for a man detained pre-trial is $15,598 and for a woman $11,071. This is compared to the average incomes of men not incarcerated, $39,600, and women, $22,704. At the national level, 445,000 people are detained in local jails pretrial, with an additional 88,000 detained by the federal government, juvenile facilities, psychiatric facilities, or on tribal lands. Between 1970 and 2015, the number of pretrial detainees increased by 433%, but not in correlation to the total population of jail, meaning that the gap between non-convicted and convicted inmates has expanded.
Violence against pretrial detainees is also a major issue affecting US jail systems. In 2015, the US Supreme Court ruled in Kingsley v. Hendrickson that pretrial detainees must be protected, due to being presumed innocent unless proven guilty. The ruling emphasized that pretrial detainees are particularly vulnerable to abuse, such as when investigators are attempting to pull a confession out of suspects. The ruling also stated that pretrial detainees should not be forced to prove an intent of harm by abusers to make a valid claim of violated rights as protected under the Eighth Amendment. This ruling comes in complement to the United Nations Standard Minimum Rules for the Treatment of Prisoners, which states that no prison system can exacerbate a detainee’s suffering unless justifiable. Nevertheless, the risk of a pretrial detainee’s exposure to violence remains high. Additionally, given structural discrimination in social and economic systems, people of color are more likely to be unable to afford bail, and therefore are more likely to experience pretrial detainment, regardless of the merits of their individual defenses.
In the DMV, pretrial detainees experience similar challenges. In DC, out of 10,163 cases filed in 2020, 1,815 were detained pretrial, including 49% of those accused of felonies. Overall, 18% of entire cases, including those for misdemeanors, resulted in initial pretrial detainment. While this percentage may seem small, when evaluating jail intakes by type of admission in the third quarter of Fiscal Year 2022 alone, pretrial fugitives accounted for 19.19% of all DC jail intakes, while all other types of pretrial detainees accounted for 43% of intakes. For the calendar year of 2022, pretrial detainees comprised 57.52% of all intakes in DC jail systems. In the DC Department of Corrections, 92.9% of inmates are Black, compared to the Black population comprising only 46.5% of the DC population overall. Additionally, the majority of inmates self-declare that the highest education they have obtained is a high school diploma and that they were unemployed at the time of incarceration. Overall, pretrial felons in DC spend an average of 10-11 months in custody, while women spend eight or nine months. As a result of the COVID-19 pandemic, this length of pretrial detainment expanded significantly, raising criticisms for DC’s inability to reduce jail populations, particularly in light of the increased risk of contracting the virus while incarcerated.
Maryland is reported by the Prison Policy Initiative as having an incarceration rate of 531 per 100,000 people, one of the highest in the country, with the highest incarceration rates in Baltimore and the southern Eastern Shore. Maryland alone has higher incarceration rates than all of the United Kingdom, Portugal, Canada, France, Belgium, and Italy, making it one of the highest rates out of any democracy globally. In line with US trends, Maryland’s inmates are majorly composed of pre-trial detainees, a number that has steadily risen since 1978. In 2013, out of 11,614 inmates, 68% were pretrial detainees, an increase of 17% since 1978. As of 2015, Maryland’s pretrial detainee rate was 155 out of every 100,000 residents, or 63% of the overall jail population, the majority of which being Black men.
Virginia has an even higher incarceration rate than Maryland, with 749 residents per 100,000 currently incarcerated. This rate is higher than the United States as a whole, with 664 per 100,000 residents. However, different from both DC and Maryland, Virginia’s number of pre-trial detainees has been consistently lower than convicted detainees between 1978 and 2013, with an average of 13,000 inmates, or 46% of the total jail population, being held pretrial. In 2021, Virginia launched the Virginia Pre-Trial Data Project to evaluate baseline measures of the pre-trial system, using October 2017 as a case study. The study found that 87% of defendants were ultimately released during the pre-trial period, with at least 59% of overal pre-trial detainees being indigent defendants, emphasizing the economic disparity for pretrial detainees compared to those who are released on bail. Regardless, due to Virginia having such a high incarceration rate, the state still ranks fourth in the southern east coast region for the rates of pretrial population compared to state population, with 234 per 100,000 people, compared to Maryland which ranks 7th. It is also worth noting that Virginia has the highest rate of sentenced population compared to the state population in the region.

