Topic: Jail Populations

For too long, New Orleans has held the title of the most incarcerated city in the world. Under the leadership of Mayor Mitch Landrieu, the New Orleans City Council, as well as local stakeholders and service providers, the tide is turning. Today, New Orleans is becoming a national leader in the effort to end mass incarceration, which many consider to be one of the key civil rights issues of our time. We are working for change that protects public safety without spending scarce public resources on unnecessary incarceration. Our goal is to reform the criminal justice system holistically so that it provides meaningful opportunities to those at risk for justice system involvement and reduces its impact on individuals, families, and communities. We’re working on this together with a wide range of stakeholders, from law enforcement to educators.

The New Orleans Police Department (NOPD) is focusing on smarter and more effective policing in its criminal justice reform efforts.  We’re issuing summonses in lieu of arrest for lower level municipal offenses and are policing smarter, focusing our law enforcement and justice resources on the most dangerous in our city.  We’re also doing more to train officers in de-escalation. For example, the department has implemented Crisis Intervention Team training, where officers receive 40 hours of specialized training from mental health experts focused on techniques and best practices for deescalating people in crisis due to mental illness or a behavioral disorder. Studies such as the University of Washington’s analysis of LEAD, Seattle’s police-led diversion program have shown that, compared to jail time, such public health-informed interventions for those at risk of arrest related to substance abuse or mental illness lead to lower recidivism rates.

In April 2012, with a grant from the Department of Justice, the City launched the first pretrial services program in the state in order to reduce and eventually end unnecessary pretrial detention of low-risk defendants. New Orleans Pretrial Services  uses an empirical risk assessment tool to facilitate objective and informed decision making about pretrial release and bail. This program has saved the city millions since its launch.

Amidst criminal justice reform, we continue to develop our crime prevention initiatives. Nearly $2 billion has been invested in new public schools and millions more in new public libraries, community centers, parks and playgrounds to create meaningful opportunities for our kids. We have now tripled our recreation budget; and our NOLA FOR LIFE murder reduction and Economic Opportunity strategies are creating pathways to prosperity for all residents.

But to be a truly safe city, New Orleans must have a jail that respects every citizen’s constitutional rights, and its justice system leaders must commit to making decisions at every step along the way that are evidence-based and prioritize releasing those defendants to the community who pose no risk to the public.

For generations, the Orleans Parish Prison was in a deplorable, unsanitary condition. Violence, suicide, and inmate deaths were all too common, medical and mental health services were inadequate, and Hurricane Katrina left much of the facility devastated.

Since entering into and funding the changes required by a federal consent decree—to ensure a constitutionally-run jail—the City constructed new jail facilities to replace the old, and the jail’s operating budget has more than doubled to $60 million per year. As a consequence, jail conditions are improving.

In early 2015, Mayor Landrieu formed a task force—including the sheriff, the district attorney, the public defender, the police chief, the departments of probation and parole, and judges—to reduce the jail population. The group developed an initial set of 17 strategies to reduce the number of people booked into the jail and the average length of stay. The City and Sheriff Marlin Gusman have continued this important work through the MacArthur Foundation’s Safety and Justice Challenge. Proposed changes would shift how the City views and uses local incarceration, and would reduce the jail population by 27 percent. Thanks to these efforts and current trends in jail population, the new 1,438-bed jail facility is expected to be sufficient to house all local inmates by 2017.

Rather than spend more money on a larger facility and/or pay for state sentenced inmates in our local jail, we should instead invest that money in community assets like recreation facilities, preventative care, and mental health treatment. Those are far better investments in this city’s future and have the potential to reduce the chances of people becoming involved in the criminal justice system.

The City’s plan for a smaller jail is a better approach to crime and public safety than the historic over-incarceration of the past. We intend to honor our promise to the people of New Orleans—to appropriate funds to simultaneously ensure public safety and the well-being of all residents.

In 2018, New Orleans will celebrate its tricentennial. This will provide an opportunity to remove the blemish of being a national leader in jail incarceration as we continue to be a leader in reform. Our city can take a new mantle as one of peace and prosperity where no one is left behind.

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

Politicians across the spectrum have begun advocating for criminal justice reforms to reduce the prison population in the United States. Until recently, the dysfunctional bail process has not been at the forefront of the national discussion, even though the most common form of bail—cash bonds or financial release—produces jail overcrowding and fuels mass incarceration. In addition, money-based bail systems cause significant racial and ethnic disparities in pretrial detention and beyond. As Judge Andre Davis recently observed, “Many of the racial and ethnic disparities that appear at the back end of the criminal justice system are actually a byproduct of those that become apparent at the front end”—including at the pretrial stages.

Nationally, approximately 62 percent of all people placed in jail are pretrial detainees charged with nonviolent offenses. Most pretrial defendants are not in jail because there is some reason to believe that, if released, they will re-offend or fail to return for future court dates. Rather, they are simply too poor to pay the money bond imposed by the court as a condition of their release. A recent study of the New Jersey jail system found that 12% of the entire pretrial population of New Jersey jails was unable to make bail of $2,500 or less (and often could not afford amounts of $500 or less). Because minority populations are over-represented among the indigent in the United States, African American and Latino defendants are more likely to suffer pretrial detention due to their inability to pay a money bond. While blacks and Latinos together comprise approximately 30% of the general population in the United States, they represent 50% of all pretrial detainees. Even beyond the disparity in financial resources, research has shown that blacks and Latinos generally suffer worse bail outcomes due to the broad discretion and implicit bias in bail decisions.

Pretrial detention is a strong predictor of whether a defendant will be sentenced to prison at the conclusion of the criminal case. Defendants who cannot afford bail and spend months in jail can suffer job loss, education disruption, the loss of housing, and many other dire collateral consequences. This reality creates a strong incentive for pretrial detainees to plead guilty—regardless of their guilt or innocence—which starts a cycle of imprisonment that is a major driver of mass incarceration. Research funded by the Arnold Foundation shows that those held in pretrial detention are three times more likely to be sentenced to prison and receive longer prison sentences than defendants on pretrial release. Pretrial confinement in jail also increases the likelihood of recidivism. The research found that even a weekend stay in pretrial detention increases the likelihood that a low-risk defendant will commit a crime upon release or miss a court date, and that likelihood increases the longer the defendant is detained.

Efforts to stem the tide of mass incarceration that ignore the dysfunctional bail system—as well as the racial and ethnic disparities it produces—will be ineffective and incomplete. In Kentucky, the District of Columbia, and in federal courts across the country, there is solid proof that bail determinations can be based on an assessment of whether the defendant presents a risk of danger to the community and whether the defendant can be trusted to return to court. In these jurisdictions, low and moderate risk defendants are released or placed in community supervision programs where they may be required to submit to drug testing, participate in drug treatment, maintain a curfew, or abide by other conditions. The small percentage of high risk defendants, like those with a documented history of violence, are denied release and held until their case is resolved. And other jurisdictions nationwide are developing new strategies for addressing the over use of their local jails—and the racial and ethnic disparities within them—as part of the MacArthur Foundation’s Safety and Justice Challenge. This system of bail based on risk—not race or resources—spares tens of thousands of people from the burden imposed by pretrial detention and significantly disrupts the cycle of mass incarceration.

Professor Cynthia Jones teaches at the American University Washington College of Law and is the founder and Executive Director of the Pretrial Racial Justice Initiative. Nancy Gist is Associate Director of the Pretrial Racial Justice Initiative and Principal Consultant at The Justice Management Institute.

Note: This piece also ran on the Huffington Post (“Decision Points: Disproportionate Pretrial Detention of Blacks and Latinos Drives Mass Incarceration”)

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

“In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” These words, penned by Chief Justice Rehnquist in the majority opinion of United States v. Salerno, should be the principle that guides each and every determination of bail and condition of pretrial release. But for far too long, in jails and courtrooms across the nation, our criminal system has failed to adhere to this Constitutional principle.

Four of the first ten amendments to the Constitution establish protections against the power of the criminal justice system in order to ensure each person is treated fairly, but the reality of today’s system is that it often does not adhere to the highest law of the land. And with nearly 12 million jail admissions and $22.2 billion in local corrections spending annually, we have a system that is as ineffective as it is unconstitutional and unjust. The 6th and 8th amendments are important starting points to address the crisis in our local jails, where America’s incarceration problem begins.

The 6th amendment gives each criminal defendant the right to an attorney, including at the initial court hearing when the judge sets the bail amount, but that right is often not reflected in practice. While you may have the right to an attorney, quite often, one will not be provided to you.

The right to counsel is an important check on a system that has overused and misappropriated jail to the detriment of our entire society. Defenders are the only stakeholders in the criminal system whose ethical and legal obligation is to argue for release and alternatives to jail for the client. Providing meaningful defense representation at the initial appearance before a judge, when bail is almost universally addressed, can have a profound impact on the rest of the criminal case trajectory and potential for lasting systemic change.

The 2001 landmark study of the Baltimore City Lawyers at Bail Project demonstrated the tremendous impact of counsel at initial bail hearing by showing that, when compared with similarly situated clients without representation, clients with defense counsel at bail were:

• Two and a half times more likely to be released on their own recognizance;
• Four times more likely to have bail amount reduced, with the average bail reduction six times greater than reduction for those without counsel; and
• Twice as likely to be released on the same day of arrest.

The 8th amendment prohibits the setting of excessive bail, defined as an amount greater than that necessary to assure a person’s return to court. However, bail in most jurisdictions is set without considering the person’s financial means and therefore can be excessive to the defendant. Representation at initial hearing before a judge is required by the 6th amendment. But failing to provide counsel at the time of bail hearing to help to ensure that bail is not excessive also violates the constitutional obligation set by the 8th amendment. Indeed, some may argue that money bail in any amount is excessive, because research and practice have shown that money bail is no more effective to assure return to court than unsecured bonds, which do not have to be paid unless the defendant fails to appear.

As jurisdictions around the nation reevaluate how their local justice systems operate, including the twenty participating in the MacArthur Foundation’s Safety and Justice Challenge, they should consider the impact of providing meaningful defense representation at the initial appearance before a judge. The practice of implementing changes to ensure that competent counsel is provided to every defendant may be practically difficult, requiring legislative and court rule change, funding realignment, and political will. But the solutions themselves are clear and have been embedded in the principles of this nation since its founding. For a nation conceived in liberty should most fiercely protect the freedom of the unconvicted, presumed innocent under law. To fix the system and deliver justice: follow the Constitution.

This post originally appeared on Medium.com.