Topic: Costs

The Safety and Justice Challenge has reduced jail populations around the country. But it is clear that racial disparities need more focus as part of the work. And COVID-19 made that clearer than ever.

As strategic allies to the Safety and Justice Challenge, my organization brings people with experience of incarceration to the table. Our view is that the people closest to the problem are the best placed to fix it. You would not have a conversation about women’s reproductive rights without women at the table. And it is the same with criminal justice reform. It is important that these are the people driving these conversations. The people most impacted by the injustices in the system should be at the table to inform the policy and work being done.

Formerly incarcerated people saw how COVID-19 once again laid bare structural inequities in the jail system. Black and Brown people stayed in jail for longer than White people during the pandemic. And they died of COVID at disproportionate rates in our nation’s jail systems.

We have seen incarcerated people’s lives at risk during previous crises. During Hurricane Katrina the Louisiana authorities looked after stray cats and dogs fast. Meanwhile they left people to fend for themselves in Orleans Parish Prison. They left them for days without food, water, or adequate ventilation. Then they moved them to a bridge with the flood waters rising all around. In New York, there was no evacuation plan for people on Rikers Island during two hurricanes. Incarcerated people in New York were also charged with making hand sanitizer — while still barred from using the sanitizer themselves, since it had been designated as contraband.

State emergency plans include labor by the detained, including digging graves. That happened in New York during COVID-19. Or putting out wildfires. That happened in California. But they don’t include planning to save their lives.

We show that Black and Brown people are disposable in the United States when we fail to plan for emergencies. Our society, our elected leaders, and those in power are neglecting the safety of millions. This type of systemic racism is the result of the generational legacy of slavery. And it is critical to decarcerate the United States by changing policies.

Many people spend time in jail while presumed innocent, before they go to trial. And yet too often, COVID-19 handed them a death sentence.

For the last nine months we have been running a #JustUs campaign. It is calling on legislators to enact proactive solutions for emergencies. Particularly for incarcerated people. One result: On September 30, Senator Tammy Duckworth introduced a federal bill to protect incarcerated people during disasters. And we have introduced a legislative roadmap for the next three years. One of our big recommendations is to pass Senator Duckworth’s bill.

Likewise, at the local level we are training formerly incarcerated people to speak up and get legislation passed. The #JustUs social media campaign features advocates in ten key locations — Alaska, New York, New Jersey, Michigan, South Carolina, Kentucky, Ohio, Pennsylvania, Delaware, and Wisconsin — who have been incarcerated themselves, and who are demanding that their representatives create official plans to protect those in jails, prisons, and correctional facilities in the event of disasters.

It could be the difference between life and death, particularly in a world with increasing natural and man-made disasters. We need emergency management plans in place yesterday.

Our campaign’s policy recommendations cut across the criminal justice system, involving everyone from courts to jails to law enforcement:

• Bring in experts in the field of emergency management and public health to create plans that anticipate every emerging disaster.
• Empower the corrections agencies to act without legislative or judicial intervention after declaration of a pandemic or crisis.
• Require corrections agencies to evacuate when necessary to decarcerate, utilizing public health triage mechanisms according to highest risk, i.e. pregnant women, people with respiratory illnesses, those over 50, and those within two years of release.
• Provide medical and humane treatment to those remaining, by providing access to the necessary safety precautions and forbidding the use of solitary confinement as a means of meeting those requirements.
• Halt transfer of jail intakes into state correctional custody.
• Require judges to use alternatives to incarceration when possible to avoid detention at all costs.
• Ensure that no one is detained because of inability to pay, including cash bail or any past debts.
• Stop all arrests for technical violations and eliminate in-person reporting and drug testing
• Replace arrests with law enforcement citations in lieu of arrest.
• Build a strong network of reentry services to transition people and ensure their success and safety after incarceration.
• Create an independent oversight mechanism and reporting to legislatures for enforcement and compliance.

The full list of recommendations and our comprehensive platform can be found here.

People can get involved by demanding that their elected officials have emergency plans in place to release our country’s and our community’s most vulnerable immediately in the event of future disasters. Your involvement can expand this platform to the other 40 States and the District of Columbia.

To learn more and join the #JustUs campaign, visit: https://jlusa.org

—Ronald Simpson-Bey is Director of Outreach and Alumni Engagement at JustLeadershipUSA

In 2015, the City of Philadelphia—where I led the local Safety and Justice Challenge work through 2019—contemplated replacing a jail that was more than a century old. But following a public outcry against building an expensive new facility, and thanks to concerted efforts by government agencies and community advocates working to reduce the level of incarceration in the city, Philadelphia was able to close the existing jail in 2018 without building a replacement—because the jail population had fallen significantly since historic highs in 2012.

As many cities, counties, and states face significant budget pressures as a result of the pandemic, spending on jails is receiving increased attention. The cost of these facilities has grown 13% over the last decade, despite falling crime and fewer people being admitted to jail. Spending on jails far outpaces many other vital services, such as fire protection, housing and community development, and libraries. About 1 in 17 county dollars nationwide is targeted for incarceration costs, with jails among the top six cost-drivers for the average county.

The Pew Charitable Trusts recently examined expenditure data for all U.S. localities and undertook an analysis of jail costs, primarily from 2007 and 2017, when jail spending could be disaggregated from the relatively small amount of other costs at local jails. We found that local corrections costs rose sixfold between 1977 and 2017, when adjusted for inflation.

These rising jail costs have occurred even though 2 million fewer crimes were reported to law enforcement in 2017 than in 2007. During that same period, jail admissions dropped 19%, from 13.1 million to 10.6 million, while the average daily jail population remained relatively flat, declining only 4%, or by 27,500 people. The gap between the change in admissions and population is because of rising average lengths of stay between 2007 and 2017.

Jail costs can rise for a variety of reasons. Growing populations lead to an increase in variable costs, such as utilities, but jails also carry sizeable fixed costs because of their physical footprint and staffing requirements—regardless of how full a facility may be. Counties with older jails may have to contend with frequent repairs or the prospect of replacing a deteriorating building with a new facility, an expense that can cost hundreds of millions of dollars. And the growing number of people with behavioral health and substance use issues in jails can contribute to escalating health care costs, which can eat up 1 in 3 correctional dollars.

And although people typically equate spending more on jails with safer communities, the numbers do not bear that out. Pew found that increased spending on jails as a percentage of local budgets within a state did not correlate with state crime rates:

A recent Vera Institute report on large city jails showed that safely reducing jail populations can be an effective way for local jurisdictions to curb incarceration costs. Of the jails in the study, almost half of those that cut their population by at least 30% since 2011 were able to decrease their spending. All but one of the jails that increased their population saw increased costs. Philadelphia was one of those cities that decreased its population by 45% and was able to achieve an 18% reduction in jail expenditures. And public officials can expand policies implemented during the pandemic—which have proved effective in safely lowering jail populations—to continue to downsize their jail systems even when COVID-19 is no longer a threat.

The data is clear and suggests a solution that can satisfy those with fiscal and safety concerns alike. By continuing and strengthening efforts to reduce jail populations, policymakers can make more effective use of public safety dollars while keeping communities safe.

­—Julie Wertheimer directs the public safety performance project at The Pew Charitable Trusts.

Marshall Project Staff Writer Jamiles Lartey hosted a recent Twitter chat on strategies for addressing racial equity in our criminal justice system as part of the Safety and Justice Challenge’s commemoration of Black History Month.

From ending cash bail to empowering impacted communities in criminal justice reform, to replacing police with community response models for crimes better handled without a law enforcement response, the conversation emphasized ways to hold the system more accountable for racial disparities and to reduce them.

A broad group of participants joined the chat from prosecutors to defenders, and from academics to activists. It took place under the hashtag #RethinkJailsChat, and you can review the whole thing by going to Twitter and searching for the hashtag or simply clicking here.

Some attendees included:

@RashadRobinson — Color of Change President Rashad Robinson
@ResLegalDiva — Melba Pierson, Policy Director at the Steven J. Green School of International and Public Affairs at Florida International University
@DrAprylA — Dr. Apryl Alexander, Associate Professor at the University of Denver Grad School
@JustLeadersUSA — Just Leadership USA — a national nonprofit led directly by impacted people
@PhillyDefenders — the Defender Association of Philadelphia
@CUNYISLG — the Institute for State and Local Governance at City University of New York
@JamiraBurley — activist and social impact strategist Jamira Burley
@APAinc —the Association of Prosecuting Attorneys
@NLADA — National Legal Aid and Defender Association
@AA_Consults — Consultant and trainer for education, empowerment and equity, Alexandra Arrington
@AntiRecidivism — The anti-recidivism coalition

Mr. Lartey set the tone by citing sobering recent research on Black imprisonment in the United States.

Despite declinings incarceration rates over the last decade-plus, the US remains in the midst of a racialized
incarceration crisis, with Black Americans being jailed at five times the rate of their white counterparts.https://t.co/eNkbGrOXMu

— Jamiles Lartey (@Jamiles) February 24, 2021

To open, Mr. Lartey linked to a recent report published by the Institute for State and Local Governance showing that overall booking rates are down, but that racial disparities persist. He asked how we can make criminal justice reform more inclusive.

Color of Change President Rashad Robinson, @RashadRobinson, emphasized the importance of holding key decision makers accountable for how they enable a system “designed to incarcerate BIPOC at higher rates.”

The justice system was designed to incarcerate BIPOC at higher rates – from the militarization of our schools to police brutality, the system works as intended. Holding key decision makers accountable for how they enable this system is the clear path forward. #RethinkJailsChat https://t.co/uOEgwkR5JJ

— Rashad Robinson (@rashadrobinson) February 25, 2021

The Defender Association of Philadelphia, @PhillyDefenders, stressed the importance of empowering and encouraging involvement from people in most-impacted communities in criminal justice reform.

#CJReform is only effective when we empower and encourage involvement from the people in communities most impacted, through programs like #ParticipatoryDefense hubs https://t.co/wYZBKetaVy #RethinkJailsChat https://t.co/C9zjTNhAyT

— Defender Association of Philadelphia (@PhillyDefenders) February 25, 2021

The next question focused on a 2018 report from the Prison Policy Initiative that found the “prison penalty” in unemployment disproportionately punishes formerly incarcerated Black men and women, Mr. Lartey asked: “Where are some other places we see this kind of racial disparity play out?”

Responses included disproportionate stops by the police of BIPOC individuals, jail populations, housing and education prospects, all contributing to a “cycle of desperation.”

It begins with contact with police. Black people are disproportionately stopped on the street by police and among those who have contact with police, BIPOC are more likely to experience the use of force. We need to reimagine policing. #RethinkJailsChat https://t.co/gf9hM0SvSP https://t.co/57ituPaUgF

— CUNY Institute for State & Local Governance (@CUNYISLG) February 25, 2021

Contact with the justice system impacts not just employment, but also housing and education prospects. This creates a cycle of desperation that has huge, negative ramifications for Black communities #CJRerform #RethinkJailsChat https://t.co/Ty7iNey1Y4 https://t.co/nevXQhrvfS

— Defender Association of Philadelphia (@PhillyDefenders) February 25, 2021

It plays out in housing, where people w/convictions are unable to live in certain buildings, as well as not being allowed to get student loans. The employment aspect is massive — if you can’t work or go to school, there is no legal path to follow. #RethinkJailsChat https://t.co/ylXRhiJuGW

— Melba Pearson (@ResLegalDiva) February 25, 2021

A3: The lifetime federal ban on public assistance, including food stamps, for people convicted of drug felonies demonizes and reduces benefits for BIPOC who have been disproportionately targeted and incarcerated for drug law violations. #RethinkJailsChat https://t.co/QKqSROLHOV

— JustLeadershipUSA (@JustLeadersUSA) February 25, 2021

Next, the discussion moved to focus on civilian responder models. A 2020 study from Police For Reform and the Center for American Progress found that between 33 and 68 percent of police calls for service could be handled without sending an armed officer to the scene.

“Many feel civilian first responders can help reduce overreliance on police & racial disparities in policing + arrests. The “CAHOOTS” program is a popular example,” Mr. Lartey wrote, linking to an article at The Marshall Project on the program in Eugene, Oregon.

He asked: “Do these kinds of civilian responder programs hold promise for reducing the disparate impact of the criminal justice system? What are some other possible solutions you think are worth mentioning?”

There was broad support for such models, and also, a call for deeper investment in the social safety net.
As stated in @MarshallProj’s The System, “rollbacks in the social safety net, growing income inequality & deinstitutionalization of the mentally ill” have all played into our current policing issues. We have to invest in alternative systems of care & support.#RethinkJailsChat https://t.co/ZFl97qVm29

— Association of Prosecuting Attorneys (@APAinc) February 25, 2021

Yes! Programs like Cahoots in OR have been shown to be effective. Denver is doing something similar. Sweden has been doing this for years. Connecting people with services is better for the community to address underlying concerns; a jail cell solves nothing. #RethinkJailsChat https://t.co/0qQLtzM8a2

— Melba Pearson (@ResLegalDiva) February 25, 2021

A4: Denver’s STAR program has successfully aided in sending mental health providers and social workers to calls instead of police. Over 600 calls they’ve addressed and did not need law enforcement intervention. #RethinkJailsChathttps://t.co/Al7MtCfflG https://t.co/NfIWUypDlP

— Dr. Apryl Alexander (@DrAprylA) February 25, 2021

Next, the conversation concluded by pivoting to bail reform, citing a recent report by Loyola University, which found that bail reform measures in Cook County increased the number of people released pretrial & was not associated with any significant change in the rate of criminal activity.

Mr Lartey asked:  What could findings like this mean for the prospect of bolder action on bail moving forward, or the spread of reform efforts? Could more findings like this stem the political backlash that reform efforts often meet?

The question drew an emphatic response:

A5: The evidence is clear that bail reform does not increase crime and poses no threat to public safety. We cannot let fearmongering continue to drive policy around the cash bail system. #RethinkJailsChat https://t.co/VVrjAAmAjM

— JustLeadershipUSA (@JustLeadersUSA) February 25, 2021

Across the country, we’ve seen Black voters elect prosecutors who ran on platforms to #EndCashBail, decline to prosecute low-level offenses and more. And, we’ve also seen historic levels of backlash, particularly when these reforms are brought by Black women. #RethinkJailsChat https://t.co/StVtE0UdgJ

— Rashad Robinson (@rashadrobinson) February 25, 2021

We have to fight the false narrative of bail reform = unsafe communities. It helps communities by reducing people losing jobs, families instability, & long term consequences of being justice involved. If we believe innocent until proven guilty- let’s act like it #RethinkJailsChat https://t.co/WqgmvX82wA

— Melba Pearson (@ResLegalDiva) February 25, 2021

—Matt Davis is a communications consultant supporting the Safety and Justice Challenge blog.

In America, we tell ourselves, those merely accused of crimes are presumed innocent, while those convicted of crimes may be sent to jail or prison.

But in reality, we treat most people in this country who are accused of crimes exactly the same as those who have been convicted: they are detained in jail and cut off from family, work, and legal counsel. How did this come about, and how can the ideal and reality be reconciled? That’s the question we posed in “The ‘Radical’ Notion of the Presumption of Innocence.”

The paper was written as part of Columbia University’s Square One Project and can be found in full here.

In it, we argue that pretrial detention in America has come unmoored from its constitutional and historical foundations and become a threat to the due process rights of Americans accused of committing crimes—especially misdemeanor crimes.

We put the word “radical” in scare quotes to connote irony: the presumption of innocence, a bedrock principle of English and American criminal law, today has been rendered toothless. Historically, this presumption wasn’t just an abstract ideal; it afforded meaningful protections to the accused. Almost every state in the country, by constitution or statute, recognizes that defendants have a presumption to pretrial release under bail conditions that are no more onerous than required to ensure the defendant’s return.

But starting in the 1980s, as part of the tough-on-crime “revolution,” changes to federal law made it easier for judges to remand accused but un-convicted persons (or set their bail at an impossibly high amount, which amounts to the same thing) based on a finding of “danger to the community.“

States soon followed suit. Studies show that now, in the federal system and in some jurisdictions, 80 percent or more of un-convicted accused are detained for days, weeks, or even months before their cases are resolved. Detentions often take place on the basis of rushed bail hearings, the most industrialized feature of America’s assembly-line approach to criminal justice. In most cases, defendants don’t even have the right to be represented by counsel and have just two or three minutes to argue for their freedom.

There is no doubt that defendants are prejudiced by pretrial detention. Persons in jail have little practical opportunity to assist their attorneys in preparing a case for trial. Even a relatively short stay in jail can cause loss of a job or housing, reducing defendants’ ability to marshal the resources needed to go to trial. The desperation jailed defendants feel causes many to plead guilty, even when the state’s evidence is weak. Prosecutors are well aware of this leverage, which is why they almost always seek no or excessive bail. This practice is especially damaging to misdemeanor defendants who often spend more time in jail before trial than they ever would if they went to trial and were found guilty.

This reality grounds our statement that pretrial processes that are supposed to serve the presumption of innocence instead have come to resemble findings of guilt. Deprivation of freedom is the most serious criminal sanction our nation imposes, short of the death penalty. Pre-trial detainees are not people who have been duly sentenced to this punishment. Indeed, they are supposedly protected by a legal presumption that, we like to tell ourselves, can only be overcome by overwhelming evidence that establishes guilt beyond a reasonable doubt.

Yet the accused are routinely treated exactly the same as those who have been convicted. Pre-trial detention is so common that more than two-thirds of the 746,000 people held in jails in America are pretrial detainees. Essentially, we have turned jails into massive pre-trial detention centers, to which people are sentenced on almost no evidence and with little process, to watch their lives be destroyed as their attorneys work out pleas that will often send them home almost immediately.

We impose this miscarriage of justice on defendants who have been accused of both violent crimes and non-violent petty offenses, because of a finding that someone is “dangerous.” But this finding usually occurs after a two- or three-minute bail hearing, often without opposing counsel, frequently without any meaningful assessment of risk. The rich make bail and the poor are remanded because they can’t pay trivial amounts of money. Is there any universe in which this process serves the presumption of innocence?

There is little evidence this system makes the community safer. In fact, there is evidence that pretrial detention is criminogenic—actually increases crime. One study found that after only two or three days in detention, individuals deemed to be “low-risk” were about 40 percent more likely to commit a crime upon release when compared to other low-risk individuals who were detained for 24 hours or less. This finding makes sense: homelessness, joblessness, strained family relationships, are factors that increase the likelihood of crime. They are all also obvious outcomes of even a short stint in jail. A practice designed to make the community safer likely increases crime while destroying lives to boot.

Widespread pretrial detention is especially unsupportable today when there are mechanisms to monitor and restrain those persons who really do those who present a threat. Near-perfect GPS tracking—either through bracelets or cell phone monitoring—are useful and effective tools to address concerns about danger to the community. These programs have been shown to work in localities that have reformed bail laws to decrease the number of pretrial detainees.

The fact that something is common does not make it just, effective, or wise. We can imagine a better criminal justice system. Reforming America’s broken pretrial detention system would be a major step forward. The irony is that this would not be a bold or unprecedented reform. It would simply be a return to the foundational American principle that people accused of crimes are presumed innocent and that the state’s burden in attempting to deprive citizens of their liberty is a heavy one. “Radical,” indeed.

—Arthur Rizer is the director of criminal justice and civil liberties at the R Street Institute. Arthur is also an adjunct professor of law at George Mason University’s Antonin Scalia Law School.

—Tracey Meares is the Walton Hale Hamilton Professor at Yale Law School and the founding director of the Justice Collaboratory.

Prison Policy Initiative’s new report Following the Money of Mass Incarceration looks at the big picture and concludes that the government and families of justice-involved people spend $182 billion each year on mass incarceration and over-criminalization. But for this report, Prison Policy Initiative also calculates an important cost hidden within this figure: the cost of locking people up before trial.

This population which has recently grown to be the majority of people in jails, has not been convicted and is legally innocent. Some people were arrested a few hours or days ago and have not been brought before a judge, and others are too poor to afford money bail and must wait for trial.

On any given day, this country has 451,000 people behind bars who are being detained pretrial. In Following the Money of Mass Incarceration, Prison Policy Initiative puts a price tag on how much it costs local governments nationwide: $13.6 billion.

Jail policies matter. There are lots of strategies that individual jurisdictions can adopt to reduce their jail populations. The MacArthur Foundation is sponsoring a number of these strategies via its Safety and Justice Challenge—providing funding to jurisdictions around the country to develop community solutions aimed at reducing use of jails and high rates of pretrial detention.

In Spokane, WA for instance, the city and county court systems are testing a new risk assessment tool—the Spokane Assessment for Evaluation of Risk, or SAFER—to calculate whether someone can be released safely pretrial without leveraging bail. Lucas County, OH is developing a similar assessment program to evaluate people as they enter the jail. And Houston’s Harris County is piloting a program to provide public defenders to some defendants at bail hearings.

And, for more on how the poverty of people detained pretrial makes money bail unaffordable and spurs pretrial detention in the first place, check out Prison Policy Initiative’s 2016 report, Detaining the Poor: How money bail perpetuates and endless cycle of poverty and jail time.

*This post originally appeared on Prison Policy Initiative