Five ways communities can use jails less

Overcrowding at local jails has been a problem in the United States since at least the 1960s. High-population jails are more vulnerable to disease, including covid, and have been linked to increased violence against inmates and jail staff.

Jails are expensive, costing taxpayers a total of $25 billion by 2017—a sixfold increase in 40 years, according to a 2021 report from the Pew Charitable Trusts.

But this problem is not intractable. Local and state-level policy changes can push jail populations downward.

Here are some of the ways communities and states can—and have—reduced their reliance on local jails.

Set lower bails and use cash bail less

The purpose of cash bonds is to ensure defendants facing criminal charges return to court, but many local and state courts set bail amounts without considering how much a person can afford to pay.

People who can’t afford bail may spend weeks, months or longer in jail leading up to their trials.

More than 80% of people held in local jails are awaiting trial, according to data analysis from the Prison Policy Initiative. That’s part of a 20-year trend of jails holding more people leading up to their trials, according to the initiative.

“You can imagine during covid when courts had to close, there’s a huge backlog of cases, and if you cannot afford your bail, you’re going to sit in jail for as long as it takes for a judge to finally call your case,” said Camilo Ramirez, spokesperson for The Bail Project.

Since its beginning in 2017, The Bail Project has posted bail for more than 20,000 people in the United States, and according to data from the nonprofit, those defendants make their court dates 92% of the time.

“It demonstrates that actually you don’t need a financial incentive to come back to court,” Ramirez said. “What you need, particularly low-income individuals, is support.”

The Bail Project provides its clients with court notifications, transportation to court and other resources to ensure their success.

Last year, Illinois became the first state to end the use of cash bail through a law that will go into effect next year. In the last five years, New York and New Jersey passed laws that banned cash bail for most misdemeanors and non-violent felonies. After New Jersey’s law went into effect in 2017, the population of its county jails fell 17%, according to state court data.

Increase access to defense attorneys during first appearances and bond hearings

In many courts, the right to counsel doesn’t kick in until well after a defendant’s initial appearance before a judge. That means low-income defendants often don’t have legal representation during their first appearance in court, a pivotal time to seek lower bond amounts, lower charges and release from jail.

“One direct benefit of counsel at first appearance is bail decisions by judges tend to change and … be more in favor of liberty than they otherwise would be,” said Andrew Davies, director of research for the Deason Criminal Justice Reform Center based at Southern Methodist University’s law school.

[ Read more: How the cash bail system favors the wealthy ]

Studies have found that when defendants have legal representation during their first appearance or bond hearing, judges are more likely to set lower bails and release them on recognizance without owing bail, leading to potential taxpayer savings on jail costs as fewer people are detained awaiting trial.

A working paper published in March by the RAND Corporation found that from April 2019 to mid-March 2020, defendants in Allegheny County, Pennsylvania who had representation during an initial bail hearing were released on recognizance or other non-monetary release 60% of the time, compared to 49% for those without representation.

Davies said that supporters of increased access to counsel have argued that attorneys can advocate for a person’s interests better than a defendant could on their own. When defendants have legal representation, judges are persuaded toward lower or non-cash bonds.

“But there are also other things happening here,” Davies said. “This provision of counsel earlier is something that often makes people in the court feel reassured they can give people liberty and take a risk on someone they wouldn’t otherwise.”

Update criminal codes and sentencing

Changing how criminal charges are defined and sentenced is one way to get at the root of why people are arrested and jailed.

From 2000 to 2017, at least 37 states have updated their property theft codes to take inflation into account, increasing the threshold where the worth of stolen goods can be classified as a felony. For instance, Oklahoma raised its felony threshold on stolen goods from $500 to $1,000 in 2016.

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Nicole D. Porter, senior director of advocacy for The Sentencing Project, highlighted three types of criminal code updates that can lead to fewer arrests and jail bookings: Increasing the felony threshold for property theft, reclassifying felonies as misdemeanors and decriminalizing drugs.

Last year, Oregon became the first state to decriminalize possession of small amounts of hard drugs, including heroin and methamphetamine. Oregon and 26 other states have decriminalized possession of small amounts of marijuana, according to the National Conference of State Legislatures.

“The political will to change the criminal code and deprioritize drug arrests and drug admissions gets into an overall conversation around how incarceration is used and how law enforcement is used relative to other social services sectors, and so it is a central part to the work in terms of thinking about jail overcrowding and what drives admissions into jails,” Porter said.

She added that a key driver of mass incarceration has been the likelihood that a community will have contact with police.

“If the fundamental nature of a resident’s interaction with police changes, then that should impact presumablyarrest and then subsequent admissions to jail, so if police can’t stop people for anything and everything, then the chance that somebody’s arrested and then admitted to jail (goes down), … hopefully driving down arrests and jail admissions,” Porter said.

Stop suspending driver’s licenses for unpaid court debt

Americans are most likely to have contact with the criminal justice system because of traffic offenses, like speeding or running a stop sign.

[ Read more: Misdemeanor charges can disrupt people’s lives. Here’s what happens when district attorneys stop prosecuting them. ]

In many places, not paying traffic tickets or fines and fees from misdemeanors can result in a driver’s license suspension.

Because many communities lack effective public transportation, people who lose their licenses often continue driving to work and to make other essential trips.

“What was happening in many places,” said Fines and Fees Justice Center Co-director Lisa Foster, “is a cycle of poverty and punishment because along with a citation for driving on a suspended license comes more fines and fees, and if you couldn’t afford to pay the first ticket, chances are you can’t afford to pay the second.”

In most states, driving with a suspended license is a misdemeanor. In six states, it can rise to a felony, according to the National Conference of State Legislatures.

About two dozen states no longer suspend driver’s licenses for unpaid fines and fees, but Foster said her organization continues to hear from drivers about the issue.

“We get emails from people daily who can’t drive legally, can’t work as a result, can’t earn the money they need to pay off their fines and fees, and they are often trapped,” she said. “They don’t know what to do, and if they drive, … then they risk arrest and jail.”

In Tennessee, Shelby County District Attorney Amy P. Weirich stopped prosecuting driving with a suspended license offenses when the underlying reason for the charge was unpaid court debt.

The move allowed her office to spend more time on serious crimes. During the first 16 months of the policy, prosecutors removed more than 26,000 of the charges from the docket, amounting to a fifth of the court’s criminal cases, according to a memo from the office.

Embrace drug courts

Drug courts are court programs that have traditionally connected adult defendants with professional treatment and accountability through a case manager or supervision officer.

Treatment courts are most effective when they target people who are dealing with an addiction or mental illness and who would be incarcerated without intervention, said Terrence Walton, chief operating officer for the National Association of Drug Court Professionals.

“When drug courts are focused on that population, not only do they reduce incarceration rates, but they save money in the long term by stopping that revolving door of people coming in and out of the system,” he said.

[ Read more: Criminal court backlogs delay trials while defendants spend longer in jail ]

A frequently cited 2011 study from The Urban Institute found that drug court participants were less likely to use illegal drugs or commit a crime in the future. The study also found the programs saved an average of about $6,000 per participant, or $2 for every dollar spent, due to fewer resources being devoted to additional arrests and time in jail.

During the last decade, Walton said, drug court programs have put a greater emphasis on community and recovery capital, or a person’s access to resources that could aid their recovery.

“I think the thrust in treatment courts that are really focusing on getting lasting outcomes is to look at all areas of the person’s life and all the things that can either support their progress and recovery or that could sabotage it and then to try and see if they can help the person access resources and make connections that will help the person to address that.”

In one example of this approach, New Hampshire has a state program that provides temporary housing to drug court participants and people with substance use disorders who are leaving prison.

Drug courts also have matched participants with potential employers. A state program in New Jersey provides employment and job training opportunities to drug court graduates and people who have completed probation.

Contact BigIfTrue.org editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Twitter.

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