By Kara Baskin
law briefs
Suffolk Law Professor René Reyes’s “Abolition Constitutionalism and Non-Reformist Reform: The Case for Ending Pretrial Detention” was published in the Connecticut Law Review in December 2021. Reyes argues that “putting human beings into cages is a deeply unjust way to respond to social problems, and that injustice is inextricably bound up with the racially and ethnically discriminatory ways in which the criminal legal system is designed and implemented.” Abolishing pretrial detention, he maintains, “is an incremental but important step toward mitigating some of that injustice.”
He acknowledges that some people may require a degree of constraint for public safety. “Yet the number of such persons is likely to be vanishingly small relative to the total number of the incarcerated, and pretrial detainees have not even had their ‘dangerousness’ assessed in a full trial before a jury of their peers. At most, the existence of some number of dangerously violent individuals should militate in favor of a narrow exception to a general rule of decarceration,” he wrote.
Reyes, who specializes in race and the law, argues that state constitutional law is a more promising pathway toward abolishing pretrial detention than U.S. constitutional law, given the current composition of the U.S. Supreme Court.
“By focusing attention on pretrial detainees—people who are legally presumed to be innocent and may not have ever been convicted of a single offense,” Reyes says, he desires to “provide an entry point into a conversation about ending the practice of pretrial detention, even with those who don’t think of themselves as abolitionists.”
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winter 2023
Photograph by Michael J. Clarke
