I. Introduction

The state’s carceral authority attaches long before conviction. The pretrial stage has become an early and potent site of state control, where arrests—based on probable cause—and bail determinations—resting on a preponderance of or clear and convincing evidence—compound and escalate to pretrial detention.[1] Once the machinery of pretrial detention is set in motion, downstream consequences—loss of employment or housing, destabilization of family structures, and even convictions by way of plea deals—accumulate with remarkable speed.[2] The state’s carceral authority gains legitimacy through the legal system’s early “inertia”—that is, its failure to scrutinize initial incarcerative decisions, allowing those bare judgments to compound into more consequential and entrenched outcomes.[3] Through pretrial detention, the consequences of carcerality are no longer bound to the individual who comes in contact with the criminal legal system, but expand their gaze to include loved ones.[4]

One reason that the carceral system expands in this way is that incarcerative decisions at the outer edges of criminal adjudication are made unquestioningly or with little scrutiny.[5] This essay positions the outer edges of criminal adjudication as concrete sites of intervention where carcerality can and should be intentionally restrained. This position is neither to suggest that carcerality exists only at these stages nor that its impact originates solely from criminal adjudication.[6] Rather, I use this essay to call attention to a specific contributor to carcerality: systemic inertia.[7] In doing so, I situate the pretrial stage as a site structured to generate inertia—a stage where procedural protections are designed to process volume out of an interest in speed and efficiency.[8]

When the ordinary operation of the criminal adjudicatory system becomes too fast, too automatic, or too insulated from constitutional scrutiny, its outer edges—where procedural scrutiny is at its lowest—entrench carcerality. In response, this essay argues that the criminal adjudicatory system must adapt; it must counteract its inertia with friction.[9] This essay uses the term “friction” to refer to the structural interventions that interrupt and interrogate the state’s incarcerative practices, including those procedural protections that place a check on and assess entries into the carceral system.[10]

The erosion of friction is most pronounced in the pretrial stage. For instance, pretrial detention decisions are frequently made through perfunctory hearings or utilizing automated tools that privilege efficiency over individualized judgment.[11] ODonnell v. Harris County offers a corrective vision.[12] First, by requiring individualized inquiry and meaningful justification before issuing a monetary bail determination, the court introduced friction at the pretrial stage, demonstrating how intentional deliberation can, and must, operate outside the trial context.[13] Second, and importantly, the consent decree approved an oversight mechanism with all parties agreeing to data collection and outcome reporting to assess the efficacy of ongoing reform.[14] In this way, ODonnell suggests a broader lesson as a check on the state’s carceral authority: if the criminal legal system no longer reliably produces the necessary scrutiny through trial,[15] then courts and legislatures must be open to shifting and restructuring scrutiny around it. In ODonnell, that is achieved through procedural friction that forces the system to assess and justify initial and continued deprivations of liberty prior to trial. [16]

Similarly, post-conviction incarceration often persists for decades without meaningful reassessment, relying on the inertia of the initial sentence to justify prolonged incarceration.[17] Thus, in a system where procedural protections are centered around the trial phase, systemic inertia compounds at the margins and early, lightly scrutinized decisions harden into long-term deprivations of liberty.[18]

This essay proceeds as follows. Part II briefly describes contemporary bail practices and the decision-making tools that emerged as reform interventions. Although many of these decision-making tools facilitate release for some, for others, these interventions systematically displace procedural protections to manage the system’s volume and ease the administrative burden in pretrial proceedings. This Part demonstrates how the state’s carceral power has been left largely unchecked throughout the pretrial phase. Part III situates ODonnell within the inertia frame and proposes its intervention as a form of friction, essential to curtailing and remedying the excessive reliance on automation, particularly through monetary bail schedules, and pretrial detention schemes. Part IV concludes by considering other sites of inertia beyond bail and considers the other end of the criminal legal system—post-conviction incarceration—as an additional stage that has been largely insulated from reform, due in part to the inertia behind the conviction.

II. Pretrial Inertia

Three key Supreme Court cases animate bail proceedings today—Stack v. Boyle,[19] Bell v. Wolfish,[20] and United States. v. Salerno.[21] Briefly, these cases together held that individuals can be detained prior to trial based on risk of flight or perceived dangerousness.[22] Further, these cases also establish that pretrial detention, though it may significantly resemble the conditions of incarceration for individuals convicted of a crime, does not amount to punishment.[23]

The holdings articulated by these cases hinge on three central premises about the pretrial phase that are each efficiency-oriented and allow inertia to compound early in the criminal adjudicatory process. First, through these cases, the Supreme Court has never held that bail is a critical stage.[24] Without the designation of being a critical phase, the Supreme Court’s precedent communicates that bail proceedings are not intended to be adversarial and therefore do not necessitate the presence of counsel.[25] In this vein, adversarial hearings are often associated with slowing down hearings. Second, that pretrial incarceration is permissible because it is a form of regulatory detention, not punitive detention.[26] The regulatory versus punitive dichotomy functions to sidestep heightened procedural scrutiny under the premise that pretrial detention is merely temporary.[27] And third, that the presumption of innocence guarantees due process protections at trial.[28] The presumption of innocence itself serves as a structural mechanism that justifies friction, but in limiting its thrust to trial, its utility relies wholly on the assumption that a trial is forthcoming.[29] In other words, if a trial does not materialize and a conviction is entered via plea deal, it begs the question of whether the presumption of innocence played any formal role in the defendant’s limited criminal proceedings. Collectively, these premises have coalesced into antipathy for pretrial proceedings, resulting in watered-down scrutiny. In this way, institutional actors responding to the Supreme Court’s cast on pretrial hearings are cautious of transforming them into mini-trials and prioritize efficiency in pretrial decision-making to advance each case to the next stage, with little regard to whether the defendant’s case will be resolved through trial or plea deal.[30]

The rise of efficiency as a normative goal in criminal administration has led many jurisdictions to develop an array of efficiency-enhancing procedures and tools that function either as release valves to reduce the number of individuals who formally enter the carceral system or simply to navigate the large volume of cases.[31] For example, some jurisdictions rely on programs that permit release on one’s own recognizance based on pre-identified eligibility criteria such as prior appearance history or charge severity.[32] Many jurisdictions require this information to be placed into risk assessment tools to assess release factors.[33] Commonly, these tools use the highest charged crime (colloquially referred to as the “top count”) as a proxy for determining danger to the community.[34] Other jurisdictions employ conditional-release mechanisms—supervised release, mandated check-ins, or GPS monitoring[35]—that are designed to move cases through the pretrial pipeline without imposing the full cost of incarceration.

A further efficiency-oriented mechanism is the use of a bail schedule: a standardized chart that assigns a predetermined monetary amount to each offense category.[36] Bail schedules allow court commissioners to set bail with ease—often within seconds and without a hearing—with the monetary amount correlating solely to the top count.[37] The result is that although individuals charged with low-level misdemeanors are more likely to be released on their own recognizance or subject to a nominal bail amount,[38] individuals charged with violent offenses or offenses involving weapons are routinely assigned substantially higher bail amounts.[39] Although bail schedules are intended to expedite processing and facilitate swift release for those able to pay, they normalize detention decisions, effectively reifying the efficiency-centered premises discussed above, despite the reality that very few defendants benefit from any form of procedural protections, particularly if they accept a plea deal.[40]

A question that often arises when critiquing the goal of efficiency in the early stage of pretrial proceedings is how to account for concerns of public safety—i.e., the “dangerous defendant.”[41] The question is a reflection of competing normative values regarding the aim of pretrial detention. It is well established that money does not mitigate risk.[42] To further put the question into perspective, it is important to acknowledge that the individuals who tend to fall into inertia are the most vulnerable in our population. For example, the median income for individuals pre-incarceration is around $20,000 or less annually.[43] These individuals are less likely to afford monetary bonds or costly alternatives to release, like pre-trial GPS monitoring.[44] But when it comes to questions about preventative detention, efficiency and friction do not have to be mutually exclusive.[45]

Many of the efficiency-enhancing processes discussed above are intended to legitimize what essentially amounts to guesswork on the part of institutional actors making split-second decisions about an individual’s liberty. For instance, while risk assessment tools or bail schedules may carry a façade of individualization, they each carry elements of automation that prevent institutional actors from truly scrutinizing the necessity for pretrial detention in each given case.[46] This form of efficiency and, to some extent automation, compounds into systemic inertia and ultimately displaces opportunities for scrutiny, for all defendants. These are the precise interstices with which this essay is most concerned.

Part III examines ODonnell’s role in advancing friction as a core procedural intervention for pretrial decision-making. Using ODonnell, this Part lays out the case for friction as a critical constitutional design value and necessary intervention as a check on the state’s carceral inertia.

III. Inserting Friction Through Judicial Intervention

Friction reflects a longstanding constitutional commitment to institutional scrutiny as a structural safeguard against unchecked state power. Criminal procedure has historically embodied this logic most fully at the trial stage, where evidentiary rules, adversarial hearings, and heightened burdens of proof deliberately slow decision-making and correct errors (or abuses of authority) that occurred in prior proceedings.[47] But as trials have receded, so too has one of the system’s primary sources of friction.[48] As this inertia builds and builds, it leaves a carceral process that operates rapidly, where outcomes are a result of decisions made at its outer edges.

Beyond criminal trials, friction as a constitutional design value is not new and has been examined across various legal fields. Friction is an integral component in conducting institutional analysis and assessing the institution’s capacity for reform.[49] In the digital privacy context, the analogous concept of obscurity recognizes the necessity in preserving privacy interests for individual users.[50] Obscurity is the deliberate design of systems that limit the state’s accessibility to private information—not by eliminating information, but by increasing the effort or process required to find or use it—functioning as a practical and normative constraint on state power in information data spaces.[51] In the context of foreign policy, scholars have examined the negative repercussions of strong bipartisan consensus, discussing the need for friction in government decision-making.[52] The rise of friction-enhancing measures is spurred by a collective recognition of the cognitive divide between the theoretical and actual procedure that takes place in the day-to-day administration of the law and recognition of the subordinating impact of minimal safeguards at consequentially determinative stages.[53]

In the context of the criminal adjudicatory system, friction functions as a meaningful check on the state’s carceral reach, counteracting the system’s tendency toward rapid, unexamined, and often punitive-in-practice decision-making. By deliberately inserting procedural mechanisms such as individualized assessments or periodic reviews, friction slows the state down for constitutionally productive reasons—protecting accuracy, ensuring meaningful review, and preventing the automatic conversion of pretrial detention to conviction.[54] In this sense, friction is not inefficiency or obstruction.[55] Here, friction interrupts systemic processes by focusing on individual outcomes through procedural safeguards that act as a counterforce to the system’s inertia.

Consider ODonnell v. Harris County as a form of judicially created friction in the pretrial context. At its core, ODonnell reframed the constitutional problem of pretrial detention not simply as a matter of bail amounts, but as a systemic failure of procedural due process. Here, Harris County operated a cash bail schedule under which most arrested individuals were assigned a predetermined monetary bail amount based solely on the top count.[56] In practice, this system resulted in the routine detention of indigent misdemeanor defendants who could not afford even relatively low bail amounts, while similarly situated defendants with financial means were able to secure their own release.[57] Bail hearings were brief and largely perfunctory, often lasting only seconds to a few minutes, and judges rarely conducted individualized assessments of an arrestee’s ability to pay or even the necessity of detention.[58] This led to thousands of legally innocent individuals remaining incarcerated prior to trial for days or weeks solely because of their inability to pay.[59]

It should not be surprising that the speed and efficiency of Harris County’s pretrial procedures were an integral component of the County’s initial argument opposing reform. To this point, Harris County presented witnesses to testify that the county leads most jurisdictions in its “timeliness” in pretrial proceedings.[60]

The district court acknowledged efficiency as a structural goal at the pretrial stage. But not as a primary goal. Instead, the district court turned to friction. Specifically, the district court emphasized that the lack of individualized hearings, meaningful legal representation, and findings based on ability to pay rendered the bail system constitutionally defective.[61] The court wrote:

Harris County’s speed at processing charges is commendable. When paired with the automatic imposition of secured money bail, however, it exacerbates the wealth-based differential treatment between those able to pay a bondsman to purchase early release and those who cannot. Those who can pay secured bonds are released within hours of arrest. Those who cannot are detained for days or weeks and face intense pressures to accept a guilty plea to end their pretrial detentions.[62]

The district court’s preliminary injunction prescribed a series of remedies, including individualized bail hearings on ability to pay, immediate release for individuals detained and unable to secure bond, and data collection and oversight.[63] The ODonnell Court’s thorough analysis reframed the problem with Harris County’s bail system as a structural one, interrogating how the system sustained inertia and what institutional checks would be necessary to restrain it.[64] In this way, ODonnell advanced a vision of procedural friction coexisting in a criminal legal system that relies heavily on efficiencies. It implicitly recognized that even if cash bail remains formally legal, a system that uses it without procedural safeguards is constitutionally suspect.

It is important to recognize the remedial significance of this case. The preliminary injunction ordered in ODonnell is a form of equitable relief.[65] Equitable relief is often not considered in the same breath as criminal law, in part because it is frequently associated with civil litigation and structural reform rather than individualized adjudication that is more common in criminal law.[66] When deployed in the criminal context, such relief is often criticized as judicial overreach, on the theory that it substitutes judicial management for legislative or executive policymaking and risks entangling courts in the day-to-day administration of criminal systems.[67] Legal scholar Courtney Lollar examines the importance of equitable remedies in criminal proceedings as a response to many of the structural problems of our overly punitive carceral system.[68] In this vein, ODonnell is not a rejection of judicial restraint, but a recalibration of it—toward oversight mechanisms that can better grapple with the tensions in protecting liberty interests and balancing institutional expediency.[69]

ODonnell illustrates how friction can serve as both a doctrinally legitimate and normatively powerful vehicle for broader carceral reform. By recognizing the judiciary’s equitable authority to recalibrate entrenched practices such as money bail, the case signals that structural remedies can preempt harm at the front end of the criminal adjudicatory process.[70] This paradigm reframes the possibilities for future reform: If courts are willing to deploy preventive injunctions to dismantle unconstitutional detention schemes at the front end of the legal system, then similar equitable interventions may, and arguably should, be extended to challenge the existing incarcerative architecture that continues to govern those serving sentences. Part IV provides an example of friction that halts systemic inertia on the back end of the criminal adjudicatory system.[71]

IV. Scrutinizing Inertia Post-Conviction

Many of the harms experienced by incarcerated individuals—whether pretrial or postconviction—are sustained by inertia. Broadly, these include, but are not limited to, financial burdens, harsh conditions of confinement, censorship, restricted access to communication, invasions of privacy, and limited availability of rehabilitative and educational programming.[72] For most of these harms, the only meaningful form of relief is equitable relief—remedies that not only improve conditions for a single individual but also effect structural change for all who enter the system.[73] Yet, its wide-ranging impact is precisely the reason that equitable relief within carceral spaces is often difficult to obtain.[74]

The same structural pathologies that ODonnell exposed—automated decision-making, entrenched inequality, and the routinization of liberty deprivation—persist, often more starkly, inside prisons and parole systems—i.e., after criminal adjudication.[75] Understanding how inertia compounds within the carceral system may help reframe how courts and legislatures might approach the rights of those already convicted and incarcerated, that is, by assessing whether the state’s processes facilitate or obstruct reentry. The following briefly considers post-conviction second look policies as one example of how friction can halt the systemic inertia of incarceration, on the back end.

Post-conviction second look interventions arose out of constitutional and policy concerns over the imposition of excessive and lengthy sentences for juveniles, leaving many with effectively no opportunity for release.[76] Today, legislative processes to reassess sentences are gaining traction across states.[77] By requiring justification of continued incarceration after a significant passage of time, the concept behind second look introduces friction to the back end of the criminal adjudicatory system.[78] Where lengthy or mandatory sentences created decades-long periods with no procedural reevaluation, second look processes create a structured opportunity—akin to ODonnell’s interventions[79]—for periodic reexamination of cases on more holistic grounds.[80] Although the mechanisms differ (individualized judicial resentencing versus structural injunctions), the animating principle is the same: When the machinery of the criminal system sustains carceral authority without any periodic scrutiny, the law must insert friction to counteract and interrogate the residual momentum from the initial decision.

Understanding second look policies through the inertia frame offers several doctrinal and policy benefits. Just as ODonnell forced Harris County to confront systemic defects before it led to further constitutional violations, second look introduces retrospective reexamination as a check on carceral inertia. In this way, the conceptual logic of second look recognizes that long-term incarceration requires long-term justification—something the original sentencing decision cannot supply indefinitely. Additionally, the interventions prescribed by ODonnell were necessary because systemic inertia had made smaller-scale reforms politically and administratively impossible. Second look legislation similarly counteracts the default tendency of sentences to persist unexamined, particularly where the state’s penological or punitive interests have already dissipated.[81]

In short, if ODonnell represents the judiciary’s use of procedural friction to correct systemic constitutional failures, second look legislation can represent the legislature’s parallel use of friction to prevent those failures from continuing. Both recognize that in a system built for speed and scale, legitimacy lies in the friction that interrogates the state’s carceral reach. If equitable injunctions can restructure bail systems, similar logic can apply to other sites insulated from friction: conditions-of-confinement litigation (including challenges to the use of solitary confinement) or other parole and probation practices (remedying structural inequities in revocation and supervision).[82]

V. Conclusion

Incarcerated individuals often encounter legal regimes that privilege administrative speed, institutional deference, and convenience over individualized assessment or constitutional accountability. ODonnell opens a window into reimagining what criminal justice reform and carceral reform can look like, more broadly. If we can extend the normative commitment of protecting the presumptively innocent to interrogating how the state applies its carceral authority over those who have been convicted, reframing what counts as constitutional harm can go a long way towards disrupting subordinating carceral cycles.[83]

  1. Cf. Clara Kalhous & John Meringolo, Bail Pending Trial: Changing Interpretations of the Bail Reform Act and the Importance of Bail from Defense Attorneys’ Perspectives, 32 Pace L. Rev. 800, 806–07 (2012) (identifying that historically the severity of the charged offense was used as a proxy for determining pretrial detention); Megan T. Stevenson & Sandra G. Mayson, Pretrial Detention and the Value of Liberty, 108 Va. L. Rev. 709, 770–73 (2022) (examining the failures of current consequentialist approaches to bail reform).

  2. See, e.g., Zina Makar, Unnecessary Incarceration, 98 Or. L. Rev. 607, 625 & n.102, 668 & n.348 (2020).

  3. See, e.g., Charlie Gerstein, Plea Bargaining and the Right to Counsel at Bail Hearings, 111 Mich. L. Rev. 1513, 1526–27 (2013); Jocelyn Simonson, Bail Nullification, 115 Mich. L. Rev. 585, 621–22 (2017); Zina Makar, Displacing Due Process, 67 DePaul L. Rev. 425, 433 (2018); Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 517, 532 (2018); Samuel R. Wiseman, Bail and Mass Incarceration, 53 Ga. L. Rev. 235, 261–62 (2018). See generally Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview (2024), https://www.rstreet.org/wp-content/uploads/2024/03/FINAL-r-street-policy-study-no-300-Mar-2024.pdf [https://perma.cc/8SGY-QPCN] (fifty-state survey of bail procedures and practices).

  4. My recent scholarship focuses on the use of technologies within carceral spaces and advances the concept of carceral-adjacent communities who are increasingly subjected to state surveillance through their connection with an incarcerated individual. See generally Zina Makar, The Digital Prison Panopticon, 38 Harv. J.L. & Tech. 961 (2025) (discussing the use of technology in carceral spaces and the resulting state surveillance of carceral-adjacent communities); Zina Makar, The Datafication of Incarceration, 135 Yale L.J. (forthcoming 2026) (arguing that the datafication of the carceral experience extends surveillance beyond physically confined spaces and into the lives of those in the outside world who maintain relationships with incarcerated individuals). The same concerns of increasing the carceral sphere arise when an individual prematurely or unjustly enters the carceral system at the pretrial phase, resulting in early carceral connections for those adjacent to them as they now become “known” within the criminal legal system.

  5. The Prison Policy Initiative reports that 113 individuals have an immediate family member who has either entered jail or prison. Wendy Sawyer, Brian Nam-Sonenstein & Peter Wagner, Mass Incarceration: The Whole Pie 2026, Prison Pol’y Initiative (Mar. 11, 2026), https://www.prisonpolicy.org/reports/pie2026.html [https://perma.cc/4546-S4QK]; see also, e.g., Sharon Dolovich, Foreword: Incarceration American-Style, 3 Harv. L. & Pol’y Rev. 237, 238–39 (2009) (explaining that incarceration has expanded beyond convicted offenders to include pretrial detainees, among many other groups, reflecting the growing use of confinement as a default response to perceived social problems).

  6. See, e.g., Devon W. Carbado, Police Power Abolition, 72 UCLA L. Rev. Discourse 658, 715 (2025); India Thusi, Policing Is Not a Good, 110 Geo. L.J. Online 226, 233 (2022), Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 7 (2019).

  7. Although this essay centers the system itself as a contributor to carcerality, it is important to recognize that its inertia is sustained and compounded by the individual decisions and practices of legal actors—judges, prosecutors, pretrial services, and county officials—that shape daily incarcerative outcomes. That is not to say that these actors cannot also apply friction. For example, the consent decree negotiated in ODonnell v. Harris County does not operate autonomously. Rather, the consent decree reflects the investment by those very same actors in coordination with plaintiffs and civil rights attorneys who agreed to implement and see through sustainable reform. For a discussion on ODonnell v. Harris County through an inertia frame see infra Part III.

  8. Cf. Darryl K. Brown, The Perverse Effects of Efficiency in Criminal Process, 100 Va. L. Rev. 183, 183, 189–200, 208–10 (2014) (describing the nature and consequences of efficiency in the administration of criminal adjudication and its contribution to the “vanishing trial”).

  9. This essay draws on terms typically used in physics to describe the mechanics of the criminal adjudicatory system. I do not intend to build out an extended metaphor in this piece but wish to acknowledge a few key terms. In physics, inertia refers to an object’s resistance to changing its trajectory unless acted upon by an external force (friction). Law of Inertia, Encyc. Britannica, https://www.britannica.com/science/law-of-inertia [https://perma.cc/3JBB-N3U8] (last visited Apr. 20, 2026). I use the term inertia conventionally and interchangeably with the term momentum to capture the cumulative effect of early procedural decisions that propel incarcerative decisions.

  10. Legal scholars and criminal justice advocates have long critiqued bail practices for entrenching inequality and have proposed a number of reforms including community bail funds, risk assessment reforms, presumptions of release, and the abolition of cash bail. Less attention has been paid to the remedies that can address the inertia behind pretrial decision-making itself. Legal scholar Cortney Lollar recently published a series of articles on the growing resurgence of equitable relief in criminal proceedings. Specifically, Lollar identifies ODonnell v. Harris County as an example of injunctive relief that responds to structural inequalities in the criminal legal process. See Cortney E. Lollar, Invoking Criminal Equity’s Roots, 107 Va. L. Rev. 495, 498–99, 501, 507–08, 569–70 & n.466 (2021).

  11. See infra Part II.

  12. See ODonnell v. Harris County, 892 F.3d 147, 153, 159–60, 163, 166 (5th Cir. 2018), overruled by Daves v. Dallas County, 22 F.4th 522 (5th Cir. 2022), and Daves v. Dallas County, 64 F.4th 616 (5th Cir. 2023).

  13. See infra Part III.

  14. . See infra Part III.

  15. See Makar, supra note 3, at 433.

  16. See infra Part III.

  17. See infra Part IV.

  18. See Makar, supra note 3, at 432–33; cf. Brown, supra note 8, at 208–10 (discussing the reallocation of efficiency gains through plea bargaining to increased prison budgets).

  19. Stack v. Boyle, 342 U.S. 1, 5 (1951) (holding that bail set at an amount higher than necessary to ensuring a defendant’s presence at trial violates the Eighth Amendment’s prohibition on excessive bail).

  20. Bell v. Wolfish, 441 U.S. 520, 535 (1979) (holding that conditions of confinement only violate due process if they amount to punishment for pretrial detainees).

  21. United States v. Salerno, 481 U.S. 739, 746 (1987) (holding that preventive detention is permissible and does not violate due process or the Eighth Amendment).

  22. See Stack, 342 U.S. at 5–6; Wolfish, 441 U.S. at 524; Salerno, 481 U.S. at 746–47, 754–55.

  23. See, e.g., Wolfish, 441 U.S. at 535.

  24. The Supreme Court has never explicitly declared or denied that bail is a critical stage. Compare Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (holding that trials are critical stages requiring counsel), with Salerno, 481 U.S. at 751 (1987) (remaining silent on a constitutional requirement to have counsel at a pretrial detention hearing).

  25. Kellen R. Funk, The Present Crisis in American Bail, 128 Yale L.J.F. 1098, 1102, 1108–09 (2019) (examining the various constitutional grounds for challenging money bail systems).

  26. Salerno, 481 U.S. at 747.

  27. See id. at 758–62 (Marshall, J., dissenting).

  28. Wolfish, 441 U.S. at 533 (“The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials; it also may serve as an admonishment to the jury to judge an accused’s guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial . . . . But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.”); See also Colin Starger, The Argument That Cries Wolfish, MIT Computational L. Rep. (Aug. 14, 2020), https://law.mit.edu/pub/theargumentcrieswolfish/release/2 [https://perma.cc/28RM-PJYQ] (arguing that the presumption of innocence has suffered from a misreading of Wolfish).

  29. See Starger, supra note 28.

  30. Cf. Brandon L. Garrett, Models of Bail Reform, 74 Fla. L. Rev. 879, 890–921 (2022) (cataloguing and discussing the various approaches to bail reform and their institutional targets).

  31. See Brown, supra note 8, at 194–95, 197–200. Of course, there is an obvious partial answer to the reason efficiency has surfaced as a goal in the criminal legal system, and that is to accommodate the demands of mass incarceration. See id. at 219–21. When the system sees endless numbers of individuals coming in, it responds by doing whatever is possible to keep up and sustain its machinery. The intent of this essay is not to explain why systems of efficiency have emerged so much as to argue that we need to interrupt its inertia. See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2025, Prison Pol’y Initiative (Mar. 11, 2025), https://www.prisonpolicy.org/reports/pie2025.html [https://perma.cc/UF8W-JFV5] (70% of the U.S. jail population is held prior to trial); see also ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1068, 1125–26 (S.D. Tex. 2017), aff’d as modified, 882 F.3d 528 (5th Cir. 2018), and aff’d as modified sub nom. ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) (Harris County’s key argument being that its pretrial program is “among the fastest in the nation.”).

  32. Petis, supra note 3, at 8, 13–22.

  33. Megan Stevenson & Sandra G. Mayson, Pretrial Detention and Bail, in 3 Reforming Criminal Justice: Pretrial and Trial Processes 21, 36 (Erik Luna ed., 2017); Pretrial Just. Inst., The Case Against Pretrial Risk Assessment Instruments 1, 4, 5, 8 (Nov. 2020), https://www.pretrial.org/files/resources/thecaseagainstpretrialriskassessmentinstruments--pji2020.pdf [https://perma.cc/CFT4-SN8C].

  34. See Sandra G. Mayson, Dangerous Defendants, 127 Yale L.J. 490, 528, 568 (2018) (“[W]hile the Court has yet to directly confront the question of whether a pending charge affects the structure of Fourth Amendment analysis, its jurisprudence already suggests a negative answer.”); Josephine Wonsun Hahn, Ram Subramanian & Tiffany Sanabia, Brennan Ctr. for Just., Misdemeanor Enforcement Trends in New York City 45 (2024), https://www.brennancenter.org/media/12401/download/BCJ-151 Misdemeanors_1.pdf?inline=1 [https://perma.cc/4NEF-AR8G]; Jeffrey Fagan & Martin Guggenheim, Preventive Detention and the Judicial Prediction of Dangerousness for Juveniles: A Natural Experiment, 86 J. Crim. L. & Criminology 415, 422 (1996).

  35. See, e.g., Kate Weisburd, Punitive Surveillance, 108 Va. L. Rev. 147, 199–200 (2022) (discussing how non-carceral punishments may still amount to Eighth Amendment violations).

  36. Shima B. Baughman, Dividing Bail Reform, 105 Iowa L. Rev. 947, 1002–12 (2020) (describing bail schedules).

  37. Id. at 962–63, 1002–06.

  38. ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1071, 1085 (S.D. Tex. 2017) (citing Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc)), aff’d as modified, 882 F.3d 528 (5th Cir. 2018), and aff’d as modified sub nom., ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018).

  39. Id. at 1076.

  40. Baughman, supra note 36, at 965, 1004, 1010–12.

  41. Cf. Mayson, supra note 34, at 497–99 (examining the validity of the risk standard for defendants versus non-defendants).

  42. See, e.g., Reducing the Use of Money Bail Makes Communities Safer, C.R. Corps, https://civilrightscorps.org/wp-content/uploads/2023/08/Reducing-the-Use-of-Money-Bail-Does-Not-Pose-a-Public-Safety-Risk-FNL.pdf [https://perma.cc/J65T-K2RL] (last visited Mar. 15, 2026). Further, 63% of the U.S. carceral population is either Black or Latino. Id.

  43. Sawyer, Nam-Sonenstein & Wagner, supra note 5.

  44. See Sandra Susan Smith & Cierra Robson, Between a Rock and a Hard Place: The Social Costs of Pretrial Electronic Monitoring in San Francisco 4 (Harv. Kennedy Sch., Working Paper No. RWP22-014, 2022), https://www.hks.harvard.edu/publications/between-rock-and-hard-place-social-costs-pretrial-electronic-monitoring-san-francisco [https://perma.cc/Y6GC-T54J].

  45. See infra Part III.

  46. See, e.g., Anna VanCleave, Bail, Detention, and the Nature of the Offense, 56 Seton Hall L. Rev. 1173, 1220–1224, 1229 (2026); Sandra G. Mayson, Bias in, Bias Out, 128 Yale L.J. 2218, 2275 (2019); Ngozi Okidegbe, Discredited Data, 107 Cornell L. Rev. 2007, 2034 (2022); Funk, supra note 25, at 1100, 1110; Simonson, supra note 3, at 627–28.

  47. See Makar, supra note 3, at 432–33.

  48. See, e.g., Nazish Dholakia, How the Criminal Legal System Coerces People into Pleading Guilty, Vera Inst. of Just. (Apr. 4, 2024), https://www.vera.org/news/how-the-criminal-legal-system-coerces-people-into-pleading-guilty [https://perma.cc/9VFD-6MJK].

  49. See, e.g., Clare Huntington, The Institutions of Family Law, 102 B.U. L. Rev. 393, 413, 447–48 (2022) (examining friction in the institutions compromising family law).

  50. See, e.g., Woodrow Hartzog & Frederic Stutzman, Obscurity by Design, 88 Wash. L. Rev. 385, 396–97 (2013).

  51. See id. at 397–99, 401–02, 403 n.77.

  52. See, e.g., Ashley Deeks & Kristen E. Eichensehr, Frictionless Government and Foreign Relations, 110 Va. L. Rev. 1815, 1823–27 (2024).

  53. See, e.g., Norman W. Spaulding, The Ideal and the Actual in Procedural Due Process, 48 Hastings Const. L.Q. 261, 267, 270, 273–74 (2021); Jason Parkin, Dialogic Due Process, 167 U. Pa. L. Rev. 1115, 1131–34 (2019).

  54. Brandon Garrett, Costs and Benefits of Due Process, Reason: The Volokh Conspiracy (Feb. 12, 2025, at 08:01 CT), https://reason.com/volokh/2025/02/12/costs-and-benefits-of-due-process/ [https://perma.cc/C4YY-7KJZ]; Brown, supra note 8, at 211–15, 218.

  55. See Garrett, supra note 54. Although such interventions may appear inefficient or even obstructive in ordinary adjudication, friction should be distinguished from obstruction. Whereas the concept of friction disciplines state power by forcing justification for liberty deprivations, obstruction adds complexity to frustrate or impede an individual’s access to relief by engraining existing carceral power structures. Recognizing this distinction clarifies that the challenge within the criminal legal system is not eliminating inefficiencies altogether but preserving forms of structural safeguards that constrain carceral authority rather than insulate it. See id.

  56. ODonnell v. Harris County, 892 F.3d 147, 152–54 (5th Cir. 2018), overruled by Daves v. Dallas County, 22 F.4th 522 (5th Cir. 2022), and Daves v. Dallas County, 64 F.4th 616 (5th Cir. 2023).

  57. Id. at 153–54, 162.

  58. Id. at 153–54.

  59. Id. at 154; see Garrett, supra note 54.

  60. ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1123 (S.D. Tex. 2017), aff’d as modified, 882 F.3d 528 (5th Cir. 2018), and aff’d as modified sub nom., ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018).

  61. ODonnell, 892 F.3d at 153–54.

  62. ODonnell, 251 F. Supp. 3d at 1124.

  63. ODonnell, 892 F.3d at 155, 163–64, 166 (vacating the district court’s injunction as overbroad because it effectively eliminated secured monetary bail rather than narrowly tailoring relief).

  64. See id. at 153–56, 163.

  65. Id. at 163.

  66. Cortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311, 314–15, 321–22 (2019).

  67. Id. at 323 (“Thus, despite the intended merger between equity and law, equity remains a complement to statutory and common law in a narrow class of cases. In the criminal context, courts and parties invoke equitable remedies to supplement the legal remedies available.”); Lollar, supra note 10, at 514, 540–42.

  68. See, e.g., Lollar, supra note 66, at 348–50 (discussing the troubling use of legal financial obligations, punitive bail practices, and unscrupulous practices of private probation companies and prison officials).

  69. See ODonnell, 892 F.3d at 163–64.

  70. See id. at 163–66.

  71. See infra Part IV.

  72. See, e.g., Dolovich, supra note 5, at 237, 237–38, 240–41; Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 Harv. C.R.-C.L. L. Rev. 165, 187 (2013); David M. Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, 84 Geo. Wash. L. Rev. 972, 995–1005 (2016); Judith Resnik, (Un)constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin”, 129 Yale L.J.F. 365, 373 (2020).

  73. See Zina Makar, The Absence of Dignity in Prison Law, 84 Md. L. Rev. 387, 428–31 (2025) (discussing Brown v. Plata, a case mandating a reduction in the prison population due to inhumane prison conditions, as one of the few prison law cases offering equitable relief given the extensive nature of harm impacting the California prison system).

  74. Id. at 428–430.

  75. See, e.g., Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. 611, 619 (2014); Ngozi Okidegbe, The Democratizing Potential of Algorithms?, 53 Conn. L. Rev. 739, 754–55, 764 (2022); Jessica M. Eaglin, Racializing Algorithms, 111 Calif. L. Rev. 753, 761, 763–65, 768–69 (2023); Brittany L. Deitch, Rehabilitation or Revolving Door: How Parole Is a Trap for Those in Poverty, 111 Geo. L.J. Online 46, 63–64 (2022).

  76. See Graham v. Florida, 560 U.S. 48, 79–80 (2010) (holding mandatory life without parole for juveniles violates the Eighth Amendment); Miller v. Alabama, 567 U.S. 460, 489 (2012) (same); Becky Feldman & Sara Cohbra, The Sentencing Project, The Second Look Movement: A Review of the Nation’s Sentence Review Laws 5, 7 (2025), https://www.sentencingproject.org/app/uploads/2025/10/Second-Look-Movement-An-Assessment-of-the-Nations-Sentence-Review-Laws.pdf [https://perma.cc/W5EJ-MR94].

  77. See Feldman & Cohbra, supra note 76, at 4–5, 7.

  78. See id. at 5, 11.

  79. ODonnell’s version of second look might be akin to its step-down supervision program for pretrial release. The Harvard Kennedy School Government Performance Lab (GPL) co-designed a pretrial “step-down” program with judges in Harris County following the ODonnell litigation. The program equips judges to reduce supervision conditions imposed on individuals released prior to trial. GPL ran a study on the pilot program and in its first year of implementation observed no changes in compliance or rearrest rates after supervision conditions were stepped down. GPL also observed a reduced administrative burden on the pretrial supervision staff. Hena Rafiq, Harv. Kennedy Sch. Gov’t Performance Lab, Building a Responsive Pretrial Supervision System in Harris County, Texas 2–3, 6–7 (2023), https://govlab.hks.harvard.edu/wp-content/uploads/2023/01/harris_co_pretrial_project_feature.pdf [https://perma.cc/N795-8PL3].

  80. See Feldman & Cohbra, supra note 76, at 9.

  81. See supra Section III. Not all added procedural barriers are created equal. Jones v. Governor of Florida, 975 F.3d 1016, 1025 (11th Cir. 2020), can be an example of added procedural mechanisms that engrain the state’s carceral power as opposed to scrutinizing it. Plaintiffs in Jones challenged a Florida law that required returning citizens who served time for a felony to pay all fines, fees, and restitution (known as legal financial obligations or “LFOs”) before their voting rights were restored. Id. at 1025–26, 1052. Plaintiffs argued that this condition created an equal protection violation, similar to a poll tax in which voting rights were conditioned on ability to pay. Id. at 1030–31. The Eleventh Circuit ultimately upheld the state’s authority to condition voting rights restoration on fulfilling all sentence terms, even financial obligations. Id. at 1048–49. The Eleventh Circuit’s opinion weaponizes procedural requirements not to safeguard rights, but to impede access. Where friction operates as a deliberate, rights-protective intervention that slows the state’s carceral authority to assess and subsequently prevent or remedy constitutional harm, the Florida scheme—and the Eleventh Circuit’s validation—sustains punishment’s collateral consequences by cementing financial and administrative hurdles that most returning citizens cannot realistically overcome. See id. at 1066 (Jordan, J., dissenting). The state’s insistence on full payment of LFOs functions not as a neutral condition, but a structurally exclusionary barrier that prolongs disenfranchisement and entrenches inequality. Through this lens, Jones demonstrates how procedural design can be mobilized to strengthen carceral power and subordinate vulnerable populations even outside the prison walls. See id.

  82. See, e.g., Nicole D. Porter, Top Trends in Criminal Legal Reform 2024, The Sent’g Project (Dec. 20, 2024), https://www.sentencingproject.org/newsletter/top-trends-in-criminal-legal-reform-2024/ [https://perma.cc/S7RV-LWQP].

  83. See Dolovich, supra note 5, at 237, 238–41.