Chapter 5 tackles what it calls the “travesty” of pretrial detention. In the past fifty years, an increased emphasis on detaining arrestees, not only for the traditional purpose of preventing flight but also to incapacitate those perceived to be dangerous, has led to a huge jump in jail populations. The result has been a mammoth increase in unnecessary confinements, disruption of families and jobs, and guilty pleas motivated solely by a desire for release. Some jurisdictions have attempted to mitigate these harmful effects by requiring the use of actuarial instruments to improve identification of those who are at risk of reoffending or failing to appear for trial. This chapter doubles down on that development, despite the controversies swirling around it. It proposes that under most circumstances, the results of well-validated risk assessment instruments should not only inform pretrial outcomes but dictate them, on the grounds that they are more likely to be accurate and less racially biased than risk assessments made by judges, as well as significantly more likely to lead to reduced pretrial detention rates if the “high risk” threshold is defined properly.

Chapter 6 moves further into the postarrest setting, using as a springboard the findings and recommendations of the American Bar Association’s Death Penalty Moratorium Implementation Task Force for the state of Florida, which I chaired. At the time of our report, twenty-two people had been released from death row on the ground they had been wrongfully convicted. Relying on an analysis of caselaw, studies, news reports, and interviews, we described the flaws in Florida’s death penalty law and practice that contributed to these injustices. This chapter summarizes and updates the findings of the Task Force in several areas: the analysis of scientific evidence; the conduct of prosecutors; the qualifications, reimbursement, and competence of defense attorneys; the decision-making process of judges; the structure and decision-making process of capital sentencing juries; the clemency process; the system’s reaction to the race of the victim; and the treatment of people with mental disability. This chapter also documents that the failings it recounts – including incompetent forensic labs, prosecutors intent on winning at all costs, underpaid and overwhelmed defense attorneys, juries uncertain about their roles, and judges and governors driven by the next election – afflict many other state systems, in noncapital as well as capital cases. The recommendations of the Task Force, also reported here, would significantly improve the accuracy of criminal adjudications across the country.