Pretrial detention should not be a death sentence

Video initial appearances are held twice daily at the Pima County Adult Detention Center. Once in the morning and once in the evening. In January of 2018, David Ray Maxwell, a then 52-year-old Black man,  appeared on video before a magistrate to face felony charges related to a shooting on New Year’s Eve. In Arizona, courts with pretrial services units  like the Pima County Superior Courts must conduct defendant risk assessments at the initial appearance stage.   Personal information about a defendant is collected and used to populate data fields that yield a risk assessment score. These scores are used by Magistrates to determine what conditions of release should be imposed.

In David Ray Maxwell’s case, the Magistrate imposed a $7500 secured bond; a type of debt that must be paid with property or an asset of equivalent value. Typically, people use a bail bondsman to post secured bonds; an option unavailable to poor people who lack sufficient property or assets to secure a bond. The poor are left to languish in jail until a final disposition of their case can be reached. This is an outcome the Arizona Supreme Court expressly urged judges to guard against, “[I]t (the court) must not impose a monetary condition that results in unnecessary pretrial incarceration solely because the defendant is unable to pay a monetary condition.” (Rule 7.3 (2)(A), Arizona Rules of Criminal Procedure).

Defendants held in pretrial detention at the Pima County jail exist in what has been described by former detainees as a “hellish limbo”–waiting for court, visitors or if they’re lucky–someone to post bail.  The privatization of jail services places a heavy financial burden on poor defendants and their families. The jail charges fees for telephone calls, fees for medical services, fees to access applications on jailhouse tablets given to detainees, fees for commissary goods and even fees for video and online visitations (in-person visits have been discontinued). Poor defendants’ lack of financial resources not only limits their access to services, it weakens and strains their family ties because visitations are fee based, too.

On February 14, 2019, David Ray Maxwell, was killed by a corrections officer at the Pima County jail during what local news sources describe as a “scuffle”. The exact cause of his death has not yet been made public but an investigation into the incident is being conducted by the Tucson Police Department’s Homicide Unit.

What is most disturbing about David Ray Maxwell’s death is the length of time he spent in pretrial detention–  over a year. His trial was still months away; it was scheduled for October of 2019.  David Ray Maxwell, a man who had not been convicted of a single charge filed against him, was caged in a jail cell for over a year and, had he lived, would have endured another 9 months of incarceration waiting for his trial. Pretrial detention is not suppose to be a death sentence.  David Ray Maxwell was allowed to languish in a jail cell because the Pima County criminal justice system decided his life didn’t count for much. They are wrong. His life matters not only to his family and friends but to all people fighting for a fair criminal justice system..

Ironically, the MacArthur Foundation awarded Pima County a multi-million dollar grant to implement a series of criminal justice reforms including making significant reductions to the jail population. The death of David Ray Maxwell, however, raises serious questions about the adequacy of those reforms. In order to create a criminal justice system that serves all the people not just the wealthy, more must be done–structural changes are needed. Suppose the purpose of initial appearances shifts from populating jails to decarcerating them. Pretrial assessments could then become tools used by Magistrates to free defendants by finding the best ways to support them while on release. In such a system, one that restores the presumption of innocence and principles of fairness,  it is unlikely David Ray Maxwell would have been held in pretrial detention on a $7500 secured bond he could not pay.

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