After extensive research, University of Pennsylvania law professor Kimberly Kessler Ferzan has concluded that courts need to end this routine policy.
By Matt Keyser
National Partnership for Pretrial Justice
June 21, 2022
Throughout America’s courtrooms, granting time served to a person’s sentence is a common practice.
A person who was held in pretrial detention before their conviction or accepting a plea is often credited time back they spent detained, whether it’s a couple of days or months off their sentence.
While it seems like a small benefit in a largely unjust criminal legal system, Kimberly Kessler Ferzan argues the practice is actually detrimental and should be abandoned.
In her article “The Trouble With Time Served,” Ferzan, a professor of law with the University of Pennsylvania Carey Law School and co-director of the Institute of Law & Philosophy, says that time served harms people who are innocent and can induce someone to plead guilty in return for getting out of jail.
“The Supreme Court keeps telling us that pretrial detention is not punishment, and yet we turn around and give credit for time served and count it toward punishment,” Ferzan told NPPJ.
We spoke with Ferzan about her article and her ideas for a better model to replace the time-served practice.
This interview has been edited for length and clarity.
NPPJ: Before we dive into the details of your article, can you give us a sense of how time served works in the U.S.?
Kimberly Ferzan: Every state and the federal government gives credit for time served, and it is typically provided by statute. So, if you’re detained pretrial — say for three days, for example — and are later convicted or take a plea deal, you’ll receive credit for those three days on your sentence.
The legislative history on time served varies quite a bit. Pennsylvania had it as early as 1937. Most states seem to have adopted it in the 1960s and ‘70s in the wake of Williams v. Illinois, a Supreme Court case that held in one context that disparate treatment between the rich and poor was problematic. So different jurisdictions were saying, “Wait a minute, we have to give credit for time served, otherwise rich people get out on bail and poor people wind up being detained.” And yet, there was this failure to recognize that this model isn’t going to do anything for people who are poor and also innocent.
NPPJ: You argue that the practice of time served should be abandoned. Why?
KF: The first reason to eliminate time served is that it is woefully under-inclusive— namely poor innocent people get no benefit under this model. Poor guilty people or rich guilty people who are detained get credit for time served. But if you are locked up and ultimately found not guilty or your case is dismissed, the time-served model leaves you with nothing.
The second problem is that it blurs prevention with punishment. The Supreme Court keeps telling us that pretrial detention is not punishment, and yet we turn around and give credit for time served and count it towards punishment.
In addition, the practice of time served hinders jail reform. Pretrial detention should be taking people who are presumed innocent and, for justified reasons, holding them like we might hold a material witness until trial. Yet we hold our material witnesses and these people who are presumed innocent in terrible conditions in jail. For as long as we then say, “Well, that counts towards punishment,” we are linking jails with punishment. So we don’t get jail reform without severing this link.
Time served also allows states to externalize the costs of their mistakes. We can have extremely capacious pretrial detention standards because every time someone is found guilty it doesn’t cost the state anything for having detained them pretrial. The state doesn’t have to pay to detain them and then pay to punish them. All the days for detention are basically free. Yet, the state obviously externalizes those costs on to the people who are being detained, whose lives are disrupted, whose families are harmed. All the costs that come with pretrial detention are borne by the people detained.
Finally, the time served practice increases the chances that we are punishing innocent people. If we have credit for time served, even if it’s not technically coercive.=, it’s a strong inducement to say one is guilty even when one is not.
When we look at those numbers and say something like, “Time served is great, because all of these people pled guilty and then they got credit,” you have to ask how many of them were actually guilty and how many of them pled guilty because they knew they’d get credit and get to go home.
NPPJ: Right. So much research reveals the harms of pretrial detention — from loss of employment, housing, all factors that negatively impact a person’s life. In your article you mention a compensation model as an alternative to time served. What does that model look like?
KF: In the article, I work through arguments like dangerousness and obstruction and risk of flight. There’s really three kinds of relationships going on with people’s rights. Either we are detaining people we have no right to detain and harming them. Or we are detaining them because we have very good reasons. Or we’re saying, “You’re dangerous and we don’t trust you, so we’re going to lock you up.” And I think that last reason sounds a lot like taking under the law.
The Fifth Amendment says when we take someone’s property for the good of the public, they are owed just compensation. Tort law recognizes that if you damage someone’s property for your own benefit, they are owed compensation. Given that’s how we treat property, why wouldn’t we think that when we detain someone for the good of the public that we in fact owe them something?
Moving to a compensation model allows us to recognize that in many cases of detention, we are harming innocent people for our benefit. Right now, we act as if they have lost rights just because we think they are dangerous. In the Supreme Court case Carlson v. Landon, the trial court compared communists to “germs” they wouldn’t “turn loose in the community.” That kind of conception of human beings is deeply problematic. To be clear, most of the time, we shouldn’t be locking people up at all, but even if we are ever justified in locking people up because we fear them, then we are harming them for us and we should pay for it. Similarly, if we are locking someone up because they can’t make bail, we need a reason to justify this additional detention. If I owe you $10, and I only have a $50 bill, you don’t get the whole $50. Yet we act as if we aren’t taking something very important from a detainee when the only reason they are losing their liberty is because they lack the funds to pay their bail.
In terms of implementation, I think it’s going to take legislation to bring about change.
But the first thing to recognize is that time served, which seems to be such a moment of mercy in the criminal justice system, is actually contributing to criminal justice pathologies. Until we recognize that time served is contributing to the problem we will never break this link between prevention and punishment.
NPPJ: Time served is so deeply rooted in our criminal legal system that it seems like it would be difficult to break that link.
KF: The fact that I’ve found only two other people who have written on this is because we take it for granted as an uncontroversial, good thing. But it really takes thinking: What are the reasons for detention? What are reasons for time served? What’s the fallout from that? It amazes me that we take time served as an unadulterated good when the people who are left out of this model are poor, innocent people.
NPPJ: A compensation model would seemingly force those in charge of setting pretrial detention and crediting time served to take a much closer look at the practice rather than maintaining the status quo.
KF: One thing I’ll note is one of the objections to my argument is there is no money in the budget, and if you make the criminal justice system more costly then the people harmed will be the people detained. Instead of 10 people in a cell, we’ll have 20 people in a cell because it will be more expensive. Any reformer will have to keep a watchful eye as to how we actually fund this compensatory model.
But at some point, society has to come to terms with the moral arguments about what we’re doing and why we’re doing it that way. We really shouldn’t ask this amorphous dangerousness questions. We need to parse the argument carefully and be clear why it is that we are entitled to take another human being and put them in a cage. What does it mean that people are dangerous? Does it mean that we’re incapacitating them because we’re getting a head start on their punishment, which we shouldn’t be allowed to do because we haven’t found them guilty? Does it mean we have credible evidence of a true threat at this particular moment? Or is it we’ve decided they’re kind of scary and we want to lock them up because we’re afraid of them? So, too, we need to be more precise about exactly why failure to appear or the inability to make bail could justify denying someone their liberty.
If we had to actually pay for our decisions, we’d be more precise with our detention standards. And thinking about detainees’ rights, instead of just thinking in terms of cost-benefit analysis, will lead to greater respect for persons.