The United States has the largest incarcerated population in the world and black Americans are overrepresented in its ranks. We tend to see the problem largely in terms of overcrowded state and federal prisons, but there is another force driving mass incarceration: local prisons.
The number of prisons has grown exponentially in recent decades, with near-annual admissions doubling from 1983 to 2013 according to the Vera Institute of Justice, and most people in local prisons have not convicted of a crime† The majority of those in prison are awaiting trial, many because they cannot afford bail; others may be there because they have been convicted and given short sentences.
In 2015, the MacArthur Foundation launched the Security and Justice Challenge, an initiative aimed at reducing local prison populations across the country. At the time, much of the talk of mass incarceration was about prisons and the need for penal reforms, especially low-level drug offenses and mandatory minimums. Led by Laurie Garduque, the director of the MacArthur Foundation’s criminal justice program, the Safety and Justice Challenge sought to better understand what experts sometimes call “prison front door”, and to partner with local jurisdictions seeking to reduce their prison populations.
I spoke with Garduque about the scope of local prison incarceration, what changed during the pandemic, and what the data says about the effects of pre-release. Our interview has been edited for length and clarity.
What role do local prisons play in mass incarceration?
Every day there are 700,000 people in prison and 1.2 million people are in prison. What is overlooked is the number of people who are incarcerated each year, which is about 10 million prison terms. Another important distinction between the prison population and the prison population is that of the people who are in prison, about two-thirds of them are held in pre-trial detention. That means they have not been convicted of a crime and are innocent unless proven guilty.
About 75 percent of those individuals are there for what we would consider less serious nonviolent crimes. Then you start to look at the racial and ethnic inequalities, and that’s pretty alarming too — people of color are three to four times as overrepresented in the prison population as they are in the population.
One of the main reasons for detaining people before their trial is the idea that it is a public safety risk to release someone who has been charged with a crime. What does the data say about that?
Many of the people detained do not pose a risk to public safety and there are ways to determine that in the decision-making process. We know from the Safety and Justice Challenge data and other data that low-risk people who are not incarcerated are not later arrested for more serious crimes.
There are those who say you can’t identify the people who are at greater risk of not appearing in court, who will remain on the street and commit serious offenses – there is data to counter that. There are several best practices to allow people to remain in the community while they await trial and to ensure they do not commit another offense or pose a risk to public safety. There is better data that people can use to make those decisions.
What are some of the other reasons why people who have not been convicted end up incarcerated?
There are what we call “legal financial obligations† Bail on bail is a legal financial obligation, but there are also people who are arrested for failing to meet legal financial obligations, such as child support or parking fines or other fines and fees that the court may impose. Unless they can find the money to pay for it, they remain locked up.
There are individuals who remain incarcerated because they have nowhere to go after being released from prison. There is a reluctance on the part of courts to simply let them go back into the community if they do not have a home or stable place to be released on their own accord.
Individuals may also be detained because they have developmental or behavioral or mental health problems – they may be considered a risk to being on the street, or they may be considered a risk to themselves. Many jurisdictions also lack pre-trial oversight, which is a way to reach out to people in the community for support to ensure they show up for their court hearing.
Do we have any idea what the average length of stay of someone in custody looks like?
The average length of stay in the decade before Covid was between 21 and 26 days, and that has increased with Covid† Many prisons have changed their admission practices due to Covid to keep numbers low, but length of stay has increased. It’s alarming how long some people stay in jail awaiting trial, even with fast-track procedural provisions and what we consider to be national standards for how long trials last.
Why has the amount of time in custody increased since Covid?
Arrests and bookings at the jail dwindled, and many of the people who were in and out within 72 hours for committing minor offenses simply weren’t even jailed. While the prison population has declined, racial and ethnic inequalities have increased.
The people arrested are those charged with more serious crimes, and they are considered to be at risk of not appearing on their trial date or posing a risk to public security, in which case they will be held without the option of bail. . Because courts in many cases were not fully operational or had no jury trials, the people simply languished in prison. This was a problem before Covid and Covid just made it worse.
What are the challenges you’ve seen when it comes to getting more jurisdictions to take measures that would reduce local prison populations?
Part of it is about not knowing what these alternatives are:, or know what the best practices are, or know what the research says. Some of it is about challenging the status quo and culture of a particular city or province. Part of that is that it is often difficult to get the various stakeholders of the system to agree. You see that now in several jurisdictions where the mayors undermine prosecutors, or where there is a debate between the police chief and the prosecutor about what best practices are.
We have a very punitive system to begin with. In part, that’s because we think punishment is a deterrent. Yet we know that is not the case. What we’re trying to do is give people better information, give them the support, create incentives to collaborate more, engage the community, think upstream of the criminal justice system about what alternatives there are to hold accountable people who have won their future. not endanger life chances.
The wave of murders has made people wary of many of those changes. But it’s clear in our data that the changes that kept people out of prison didn’t cause the murder rate to rise, because it’s not like the people who were kept out of prison are later arrested for violent crimes. What we have learned is that we can actually lower the number of incarcerations and that the… Security and Justice Challenge Sites have done so at a faster rate than what is nationally clear and without endangering public safety.
The increase in violent crime has only occurred in relation to homicides, in some cases aggravated assault, but overall violent crime continues to fall. While I am not raising these issues to minimize the tragic loss of life and concerns we have about violence, it is simply misleading to attribute it to bail reforms or progressive prosecutors. It’s not a valid argument to make when you look at the data.
What are some of those alternatives to prison?
You can subpoena them to appear at a later court date. If people have mental health or substance abuse problems, you can take them to a crisis triage center so that they become stable and can return to the community or be matched with appropriate services. Once you have been charged, you can have a lawyer appear on first appearance and claim that the person does not need to be detained because he or she does not pose a risk to themselves or others with regard to safety.
You can implement automatic court reminder systems. Some of our jurisdictions have social workers in their public defenders’ offices so that people are tracked and reminded to appear at their court hearings. There may be an automatic reconsideration of money bail if someone is held and unable to pay the bail. It’s somewhat controversial, but some jurisdictions use risk assessment tools to determine the conditions under which a person can remain in the community or be released on their own accord.
There are plenty of other steps that can be taken, but you have to agree with the community and stakeholders that these are solutions to problems you are trying to solve, and it will be different in every community. What works in Philadelphia isn’t necessarily what works in Chicago, Toledo, or Tucson.