Topic: Jail Costs

Perverse incentives drive government officials across the United States to stop, arrest, put through the court system, and even jail more people to generate revenue rather than to advance public safety. That is the focus of our recent report from the Brennan Center for Justice produced with support from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC).

The report attempts to explain why decades-long efforts at decarceration, and broader criminal justice reform have run into such immense challenges focusing on a range of programs and practices often said to be aimed at public safety, but which are better understood through the lens of revenue production. The publication details how ending mass incarceration cannot happen until policymakers and the broader public understand and change the deeply entrenched economic and financial incentives that encourage punitive enforcement and imprisonment. Better understanding the extent of these interlocking incentives should make policymakers clearer eyed in making transformative policy changes.

Complex factors beyond simply increases to police forces and more punitive criminal penalties played a significant role in creating today’s bloated jail and prison populations. The report highlights some of the most corrosive and entrenched revenue generating practices—such as civil asset forfeiture, fines and fees, and privatized community supervision—where people subjected to criminal enforcement activities are routinely made to contribute to the very cost of their being arrested, detained, charged, prosecuted, supervised, or incarcerated. These economic and financial incentives established by local, state, and federal agencies are hiding in plain sight. The report details how police, prosecutors, and corrections agencies competed for these benefits by escalating their enforcement practices. Law enforcement came to depend on these funding sources, particularly as declining tax receipts and intergovernmental transfers left them grasping to fill budget holes. These incentives are a persistent structural driver of punitive enforcement and mass incarceration.

User-Funded Justice

Often so much time and effort go into generating revenue that the goals of pursuing justice and improving public safety get pushed to the side. The killing of Michael Brown in Ferguson, Missouri, drew national attention to this phenomenon because the city had pushed the police department and the courts to maximize funding potential of fines and fees. In fiscal years 2010 and 2011, about 12 percent of Ferguson’s general fund revenue came from fines and fees. By fiscal year 2015, the city was budgeting for 23 percent of its revenues to come from fines and fees.

Civil asset forfeiture has also turned into a major revenue source, going well beyond its onetime purpose of targeting drug kingpins. Law enforcement agencies seize and retain peoples’ cash, vehicles, homes, and other items on a suspicion of their connection to an offense without having to prove the connection. Minnesota’s Metro Gang Strike Force is a good example of this. An investigation revealed that its members were stopping and searching people who were clearly not involved in gang activity, and then taking or buying seized items for personal use — like televisions, tools, appliances and jet skis.

Correctional and Detention Bed Markets

Perverse incentives have also created a market in incarcerated people. Financially distressed counties have seen the market as a solution to their budget woes—often expanding their jails, or building jails that are bigger than they need, with the expectation of selling the extra bed space. As a result, a thriving market exists for beds in local jails and other detention facilities. In Louisiana, for example, Immigration and Customs Enforcement pays $74 a day to local sheriffs for its jail beds. That is nearly three times what the state prison system pays the same sheriffs to use its jail beds. In Midland County, Michigan, the local budget depends on renting jail beds at $45 a day to other counties. Bladen County, North Carolina, earned nearly $2 million in the first 18 months after it started holding people for the federal government in its local jails.

Enforcement-Oriented Performance Metrics.

Police departments and prosecutors’ offices reward staff for meeting productivity-based job metrics, such as arrest quotas and high conviction rates; they penalize people who fall short. With their job security and career advancement at stake, law enforcement officials are incentivized to pursue punitive measures even when leniency might be more appropriate.

Rebalancing the Scales of Justice

To unravel mass incarceration, and end it, reforms must account for and change the full array of these perverse financial incentives. Moreover, the justice system should be funded fairly and equitably by taxpayers, all of whom are served by it. It should not be funded primarily by the community’s poorest, most marginalized members. Based on that understanding, to end the crisis of punitive enforcement driven by pecuniary motives, policymakers need to identify and undo this self-reinforcing bundle of financial incentives that agencies have become all too reliant on to sustain or top of their budgets. Working together, they must change what is measured and rewarded to shift incentives. That is what will provide true public safety and restore community trust in the criminal justice system.

Too often across county government there are siloes between efforts to reduce jail incarceration and efforts to house people. But a recent report by the Urban Institute funded by the Safety and Justice Challenge shows how cross-governmental collaboration can break down these siloes and address historic injustice which has contributed to the jail-homelessness cycle.

The report is based on learnings from three private roundtables we held in 2020 with practitioners, people with lived experience of jail incarceration, and subject matter experts across housing, behavioral health, and criminal justice. The purpose of the roundtables was to understand how gaps and lack of coordination prevent large-scale systems change in these areas. Specifically, conversation focused on analyzing how existing funding streams limit housing options for people with criminal justice involvement.

It is important for counties to understand the background of structural and institutional racism that connects housing and criminal justice challenges. Decades of disinvestment and exclusionary zoning have created barriers for people of color to live in some upper and middle-class neighborhoods. Even when affordable housing is created it often ends up in distressed and under-resourced areas. Disparate racial outcomes in our housing and criminal justice systems persist in part because solutions to racist histories are often focused either on housing or the criminal justice system, not the relationship between the two.

Counties are in a position to help bridge the housing and justice fields. Housing instability can both be a result and a cause of interaction with the criminal justice system. People with serious mental illness and substance use disorders, people with previous incarceration, and people in moments of transition (such as aging out of foster care)are all more likely to experience housing instability. an This diversity of factors calls for program and policy solutions that can minimize the risk of experiencing the justice system–housing instability cycle. Any effort to improve housing stability and reduce jail use must intentionally align the specific needs of the people being served and the activities pursued.

The report settled on the following four constructive approaches to addressing the cycle:

1. Provide Housing Without (or with few) Conditions

The Housing First approach is an evidence-based concept grounded in the idea that people need housing before they can begin working on other challenges. Housing is a stabilizing platform that helps people overcome challenges in other aspects of their lives (e.g., substance use disorders, lack of employment). Housing First recognizes this and therefore does not condition housing on the achievement of sobriety, treatment, employment, or other milestones. Evidence shows this practice works.

2. Support the Whole Person to Achieve Housing Stability

Housing stability is not just about housing. Supportive services linked to housing can help improve outcomes for people with mental health and substance use disorders, both of which can contribute to and be exacerbated by jail stays. Each year 2 million people with mental illness are booked into jails. Of those 2 million, 75 percent have substance use disorders. In many cases, people receive their first mental illness diagnosis in a correctional facility. Jails should not be substitutes for robust community-based behavioral health services. Instead, counties can shift resources to create housing solutions that provide holistic approaches and services to address underlying challenges such as mental illness and homelessness.

3. Fund Multiple Pathways to Promote Housing Stability

Just as there is no single cause of housing instability, there is no single housing solution that can meet all residents’ needs. Counties should pair structured, clearly defined programs, such as permanent supportive housing, with flexible funds that can be used to solve a wider variety of underlying challenges for people who cycle in and out of jails and housing.

4. Plan for Release before Release

Deflection from the criminal justice system should be the guiding principle for local policymakers, however, no community has eliminated the use of jails. The millions of people released from jail every year, many more than once, face unique challenges and require supports that promote housing stability upon release. Landlords and property owners discriminate against applicants who have any degree of justice-involvement. Public housing authorities may temporarily or permanently exclude people with some types of criminal histories, using their broad discretion when crafting screening and eviction policies. Where deflection and diversion are not successful, counties and local criminal justice and housing actors can embed housing planning at intake or other points before release for those with the highest needs.

Bridging Funding Gaps

To date, housing as jail diversion has attracted limited attention and investment. This is caused partly by the siloed nature of existing traditional funding streams and the inherent risks of experimental and innovative solutions. Strained state and local budgets present another significant barrier to addressing housing as jail diversion entirely within the traditional funding paradigm. However, the pandemic-spurred urgency to reduce jail populations, new federal funding streams, and continued growth and maturity in the innovative funding marketplace have created an opportunity to invest in solutions. We encourage counties to explore opportunities for impact investment to bridge gaps by tapping new funding that is faster, more flexible, and potentially more conducive to testing and scaling innovative solutions like these.

Actionable strategies are needed to improve coordination across the sectors, increase housing options at the point of diversion and reentry, and leverage the investments to make this happen. Counties and cities can help the housing and justice sectors to help people avoid justice system involvement in the first place, support successful returns to their communities, and target resources toward housing stability.

A recent debate in a small Michigan community shows how problematic debates over building new jail space can be.

It is critical that counties ask the right questions before deciding to build a costly new jail, because history has shown that expanded jails are quickly filled with people who would not have been jailed before, with serious personal and community consequences.

But too often these questions are not addressed, and the public and community leaders do not have clear and accurate information to inform decisions. This happened in Otsego County, Michigan, recently, and it should be a cautionary tale for other jurisdictions.

Correctional, law enforcement, and court officials in Otsego County, which has a population of about 25,000, have been pushing to expand their 34-bed jail to a 170-bed, $30 million facility for 15 years. They have solicited at least three studies to evaluate local correctional systems and recommend solutions to reduce jail overcrowding, and a close look at the local debate showcases confusing data, misleading statements, and misdirection from public officials in favor of jail expansion.

The Worst Jail Assessment We Have Ever Seen

A recent feasibility study produced for the county included a perplexing data analytics section. The data analytics section of the report was perplexing. In one graph, the scale appeared to change for no apparent reason. In 2019, the population of 24,985 appeared lower, not higher, than the 2018 population of 24,665. But the chart also showed the county’s population at 10-year intervals except for 2018 and 2019. It was unclear what people were supposed to take away from it.

Other numeric projections were strange. One meant to tie the need for a 253% increase in jail space to the county’s current 0.11% annual population growth rate. A summary of annual court caseloads from 2008-2018 also showed a trend of decreasing caseloads over time. A summary of jail bookings, average daily populations, and average length of stay from 2009-2012 and 2014-2018, showed that the jail typically operated at between 100-115% capacity before 2013, but has operated at 70-88% capacity for four out of five years since. The most perplexing sentence in the architects’ report called the jail population data “unreliable,” even though that data made up most of the report’s analytics section.

We asked David Bennett, one of the authors of the National Institute of Corrections’ Jail Capacity Planning Guide, to review Otsego County’s recent feasibility study, and he, too, concluded that it fell far short of a comprehensive assessment. He suggested that the county develop a criminal justice system master plan instead.

Resisting Best Practice Alternatives to Incarceration

Law enforcement and judicial officials complained to the consultants that, with the jail often near maximum capacity, they “have one hand tied behind their back,” and have been forced to come up with alternative sanctions instead of jailing people for the offenses they would like to. Ironically, many of the alternatives that officials complained about being “forced” to use are widely considered best practices today, including:

• Issuingcitations in lieu of arrest
• Using non-carceral sanctions for violationsof probation or drug court conditions
• Sentencing to analternative-to-incarceration program, such as the drug court or the sheriff’s day reporting “work camp”
• Usingrestraint in prosecutorial charging decisions to avoid unnecessary incarceration
• Avoiding themisuse of the jail to lock people up for mental health or substance use

The Jurisdiction Hasn’t Answered Community Questions Well

Community members have received mixed messages from local officials in response to their concerns that the new jail will immediately be filled once police have a place to book more people and judges have a place to detain and incarcerate them. In a local newspaper series about the need for a new jail, the county jail administrator said that is “not necessarily true”: “We have great judges and I do not see them being overzealous and automatically going to the jail commitment.” But in the same article, one of those local judges commented:

“What it comes down to is it hampers my ability to do my job, which is to protect our community by creating this deterrent effect and this punishment. If I’ve got to give this person work camp or probation, I’m not accomplishing that goal because it doesn’t have the same effect as sitting in jail for 30 or 60 days.”

It is true that sitting in jail has a different effect than sentences that allow people to remain in the community, such as probation – but the evidence is clear that the costs of locking people up are much greater than the negligible, if any, deterrent effect of incarceration.

Multiple studies show incarceration does not reduce the likelihood of future violent crimes after release, and that incarceration increases the odds of re-incarceration. Meanwhile, even a short stint in jail can seriously destabilize individuals and families, and even short sentences to incarceration lead to long-term employment problems.

Conclusion

From a jail administrator’s or law enforcement official’s perspective, a bigger jail may be an attractive solution to overcrowding, but most Americans do not stand to benefit from bigger jails or the increase in arrests and detention that are certain to come with them. Yet they are the people expected to pay for these multimillion-dollar projects and the hundreds of thousands of dollars in additional annual operational costs.

We recommend that any county considering a new jail should first engage the community in conversation about their public safety priorities. Then, to reduce unnecessary jail usage, it should expand the jail alternatives the county has already implemented to keep people out of jail. It should change pretrial policies and practices that result in unnecessary jail detention. It might also implement new programs to minimize missed court appearances and the resulting bench warrants. We also recommend consulting a criminal justice system expert who will evaluate the jail as part of the larger local criminal justice system.

The National Institute of Corrections, part of the U.S. Department of Justice, has a Jails Division for the express purpose of offering technical assistance, information resources, networks, and training to local jail systems. Its services include help with jail and justice system assessment and planning.

Unfortunately, Otsego County’s “jail first” approach looked at the jail population alone as evidence of whether the jail is “big enough.” But a community should get a chance to understand how all the different parts of the criminal justice system are contributing to the jail situation before taking the huge and irreversible step of sinking tens of millions of taxpayer dollars into a bigger jail that will lock up more of their own.

The bottom line is that we hope more counties will avoid wasting taxpayers’ money on extensive spin campaigns like this one. There are best practices out there to follow so that everyone is kept safe without building costly and unnecessary new jails.

America’s over-incarceration problem begins in our local jails. Each year, there are close to 11 million jail admissions in the United States, nearly 18 times the number of yearly admissions to state and federal prisons. In many regions, jail populations have reached crisis levels.

The primary purpose of jails is to detain people who are awaiting court proceedings and are considered a flight risk or public safety threat. Many people admitted to jail cannot afford to post bail and may remain behind bars for weeks, months, or even years awaiting trial or case resolution. Our over-reliance on jails has negative consequences for people who are incarcerated, their families, and communities. Burdens of jail fall disproportionately on communities of color. Black Americans, for example, are jailed at five times the rate of white Americans and comprise a proportion of the jail population that is three times their representation in the general population.

In response, the MacArthur Foundation launched the Safety and Justice Challenge (SJC) in 2015, and has so far invested $252 million in the effort. Its aim is to help create fairer, more effective justice systems on a large scale.

The goal of the SJC is not just to reduce jail populations, but to do it safely – this has been a pillar of the initiative since its inception. Our previous research has highlighted the substantial reductions made in jail populations across SJC sites since 2015. But our new report provides an initial look at those decarceration strategies through a safety lens. More specifically, it explores how both aggregate crime rates and returns to custody among people released from jail changed after the launch of the SJC and the implementation of decarceration strategies in sites through 2019.

Reducing Jail Populations Without Compromising Public Safety  

Our latest analysis runs through 2019 and explores how crime rates changed after the launch of the SJC. It also analyzes returns to custody among people released from jail. We will explore COVID-19’s impact in future briefs.

Our analysis should be viewed as a first step towards assessing decarceration and public safety. Our measures rely on administrative data from criminal justice agencies, and as a result are reflective of the justice system’s responses. Future stages of our work will aim to explore public safety in a much more nuanced manner. For now, our goal is to lay a broad foundation of understanding about the trends we are seeing.

Findings suggest it is possible to craft decarceration strategies without compromising public safety. In fact, our measures of public safety across SJC sites remained about the same before and after reforms were implemented to reduce local jail populations.

Local Crime Trends Remained Stable or Decreased in Most SJC Sites

During the first few years of SJC implementation, 11 sites experienced a reduction in index crimes greater than 10 percent. The majority (19) either experienced some decrease or remained the same.

The Rate of Returning to Jail Custody Was About the Same

Among individuals released from jail pretrial, return to custody rates for felonies, misdemeanors, property crimes, and violent crimes within a year remained about the same.

Being returned to custody on a violent charge was rare before and after SJC implementation; being returned on a homicide was very rare. Most individuals who returned to custody within a year did not return on a more serious charge.

Regardless of the specific charge type, return to custody rates among those released pretrial did not change after the implementation of decarceration reforms began.

Prior to the implementation of SJC jail population reduction strategies, 38 percent of people released on pretrial status were returned to custody within 12 months of their release. (Note that our return to custody measure includes returns for reasons other than a new criminal charge—future work will focus more narrowly on returns that involve new charges.) This remained true in the years following SJC implementation – of those released pretrial in the second year of the SJC implementation, 39 percent returned to custody within a year. The vast majority of sites did not experience an increase in the return to custody rate after SJC implementation began.

Conclusions

The findings of this analysis suggest that decarceration efforts in SJC sites did not endanger public safety as measured by crime rates and returns to custody. As incarceration rates declined during the SJC, crime and violent crime rates also dropped or remained the same in most sites, mirroring national crime rate trends. When examining individuals who were returned to jail custody within a year of release, the rates of return were about the same before and after the SJC – suggesting that decarceration efforts, especially among the pretrial population, do not lead to a higher rate of returns. Importantly, returns to custody for violent crime charges and homicide charges were rare before and after the SJC. Of course, our measures are not inclusive of all definitions of public safety. Future work will examine the public safety implications of the SJC more comprehensively.

More on the Data

SJC sites share jail population data once a month with the Institute for State and Local Governance (ISLG) at the City University of New York (CUNY). A subset of sites submit detailed case-level jail data to ISLG once a year. We sourced crime data from the FBI 2019 Crime in the United States report.

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