Topic: Jail Populations

“I’ll bail you out”—we say that phrase so often it has become an idiom divorced from meaning. The concept of having to pay to secure your freedom has become so ingrained in American society that people rarely stop and ask “why?” This is America—you are innocent until proven guilty. On the eve of Labor Day weekend, when Americans celebrate the hard-fought victories of workers who organized for fair wages and safe working conditions, we must examine the for-profit, commercial bail bond system’s impact on today’s working families and ask why people presumed innocent remain incarcerated unless they give the court—or a for-profit bail bond company—their hard earned money.

This is a poignant question here in New Orleans. Long the most incarcerated city in the most incarcerated state in the most incarcerated country on this planet, our local jail population has come down from the post-Katrina high of 3,400. Yet we still incarcerate people in our jail at a rate twice the national average. As of today our local jail population is roughly 1,800. Of that number, approximately 1,400 are pretrial and presumed innocent.

The answer is obviously not to simply open the doors of the jail and let everyone out until their trial, but to determine who does not belong in jail pretrial. The U.S. Constitution mandates that an individual accused of a crime may only be incarcerated pretrial if they pose a flight risk, or are a danger to public safety if released.

Yet the commercial bail bond system does not align with the goal of detaining only those who pose such risks, nor does the long-held assumption that a person is less likely to flee if required to give the court something of value as collateral. What does the ability to pay have to do with a person’s risk to public safety? And what if he or she cannot afford the bond set for reasons that have nothing to do with risk, such as poverty? For those who cannot pay the full amount of their bond, the bail bond industry will front the money, in exchange for a nonrefundable fee, of course (usually ten percent of the total bail amount). The better question to ask may be: why should people’s freedom depend on their wealth?

The New Orleans Pretrial Services program (NOPTS), and similar service agencies in major cities all over the country, attempt to render those questions moot by establishing an objective screening system to determine a person’s risk of flight or threat level. A pretrial services agency typically screens every arrested person using factual, objective metrics, such as criminal history, employment history, family situation, the seriousness of the person’s charge, and other factors. This screening tool calculates a risk score the judge can then use to determine whether a person poses a risk and should be detained pretrial. Ability to pay never enters the equation.

It is critical to shift the presumption away from requiring arrestees to post a bond, and instead use an objective system to help determine actual risk. NOPTS helps the New Orleans criminal justice system, and the magistrate judge in particular, accomplish this.

The city is participating in the MacArthur Foundation’s Safety and Justice Challenge, and has set a goal of reducing the local jail population to fewer than 1,200 by 2018. Projections further out anticipate a possible reduction to 1,000 total detainees by 2020—an incarceration rate that would finally align New Orleans with the national average. But these reductions are only possible if New Orleans and its citizens take a step back and examine why the criminal justice system is the way it is, and whether we have erected barriers to pretrial release that siphon money out of working class communities for reasons that have no bearing on public safety.

NOPTS has already played a large role in reducing the pretrial jail population by providing fact-based assessments of risk. While NOPTS has been met with some resistance, there is momentum building for fairness and justice in our criminal justice system. As city leaders and the community become more aware of just how many poor people are held in jail for no other purpose than the profit of the bail bond companies at the cost of millions of dollars to taxpayers, more and more people will begin to ask: “why?”

This post originally appeared on the Vera Institute of Justice’s Current Thinking Blog. 

Susan Guidry is the City Councilmember for District “A” and chair of the council’s Criminal Justice Committee.

This March, the Police, Treatment, and Community Collaborative (PTAC) held its inaugural National Pre-Arrest Diversion Conference: Seeding Pre-Arrest Diversion Across the United States, to provide information, training, and technical assistance to representatives from jurisdictions across the United States looking to implement pre-arrest diversion or enhance their existing diversion efforts.

Issues like the emerging opioid epidemic and the realization that arrest is not the answer for individuals battling addiction and mental illness have caused a dramatic evolution in the practice of law enforcement. Increasingly, law enforcement leaders are uniting with behavioral and public health professionals to change how they address the needs of their communities. These changes include cultivating or expanding local partnerships, enhancing skills, and exploring innovative ways to expand services in their individual communities. The conference allowed teams of law enforcement, behavioral health, community partners, and other stakeholders to identify shared goals and create extensive strategic plans, with advice and guidance from national experts in order to meet those goals.

Teams and individuals from over 20 jurisdictions attended the conference, including 10 Safety and Justice Challenge (SJC) sites: Charleston County, SC; Connecticut (Hartford and New Haven); Cook County, IL; Dane County, WI; Lake County, IL; Lucas County, OH; Minnehaha County, SD; New Orleans; Philadelphia; and Pima County, AZ. The International Association of Chiefs of Police (IACP), who co-sponsored the conference and funded the attendance of eight SJC sites, was joined by staff from other SJC strategic allies and partner organizations. These organizations included the Association of Prosecuting Attorneys, National Conference of State Legislatures, National League of Cities, National Legal Aid and Defender Association, Policy Research Associates, Pretrial Justice Institute, and the Vera Institute of Justice.

Anchored by Jac Charlier, PTAC co-founder and National Director for Justice Initiatives, Center for Health and Justice at TASC (Treatment Alternatives for Safe Communities), the conference provided an opportunity for attendees to learn about the five frameworks or “pathways” of pre-arrest diversion,  and to hear about examples of each from leaders in communities who are using those particular pathways.  These include:

• “Self-referral,” which originated in Gloucester, Massachusetts in 2015 as the Angel Program and helped to establish the Police Assisted Addiction Recovery Initiative (PAARI);
• “Active outreach,” which was discussed by Lucas County Sheriff John Tharp, who established the Drug Abuse Response Team (DART) in 2014;
• “Naloxone Plus,” which works to ensure that individuals who have received Naloxone to reverse the effects of an overdose are then linked to treatment programs;
• “Officer prevention,” which is exemplified by the Law Enforcement Assisted Diversion (LEAD) program; and
• “Officer intervention,” which was represented at the conference by the Leon County (FL) Adult Civil Citation Network.

In addition to offering information about pre-arrest diversion, the conference offered educational sessions to aid in guiding the sites with their strategic planning. While these sessions were crucial to help attendees understand pre-arrest diversion and the context in which it must be practiced, what made this conference unique was the devotion of a full day for facilitated action planning that for many teams, resulted in a plan for implementing pre-arrest diversion that they could present to their partners upon their return home.  Sites were assigned facilitators and put to work filling out Solutions Action Plans and related assessment and planning tools to guide the development and implementation of their pre-arrest diversion program(s).

This conference was a tremendous opportunity for attendees to learn, plan, strategize, and broaden their perspectives about how to think about and use diversion, engage with and listen to their communities, and collaborate better with system partners or pull in new partners.  The PTAC Collaborative plans to hold a second conference next year to feature presentations from jurisdictions that planned or enhanced their pre-arrest diversion efforts at this conference, and to work with representatives from additional jurisdictions wanting to address their community’s challenges in innovative and collaborative ways.

The PTAC Collaborative is an alliance of practitioners in law enforcement, behavioral health, advocacy, research, and public policy, whose purpose is to provide vision, leadership, advocacy, and education to facilitate the practice of pre-arrest diversion across the United States.  Launched in April 2017, PTAC is open to anyone who would like to have a voice in the conversation about pre-arrest diversion.  For more information, contact Karen Maline at maline@theiacp.org.

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.