On a recent afternoon at the city hall in Toledo, Ohio, Holly Matthews is teaching her colleagues some slang. “I forgot to tell everyone my new word of the day,” she says. “It’s ‘pookie.’” A pookie, Matthews explains, is another word for a crack pipe. “I checked with Urban Dictionary,” she says, chuckling.
Matthews is executive director of the Criminal Justice Coordinating Council, an agency that provides criminal justice information services to residents of Lucas County in Northwest Ohio. She is also one of a dozen members of the county’s Population Review Team, an interagency group that seeks ways of reducing or eliminating jail time for new or low-level offenders, with the goal of reducing incarceration rates in Lucas County’s overburdened jails. (Matthews’ “pookie” was in a case file she was reviewing, found by police in the pocket of a man who was arrested after a domestic dispute.)
The atmosphere in the room can be lighthearted, but the Population Review Team’s work is serious business — especially in Toledo, Lucas’ county seat, where reducing incarceration rates is sorely needed. The county’s jail is designed to hold only pretrial inmates, but it is being overburdened by too many people waiting to see a judge. In 2014, a U.S. Federal judge ordered the county to cap its jail population, which had a capacity of 346 beds. Two years after the cap was set, the jail’s population has been reduced to 667 people — down from 845 in 2016 — for the first quarter this year, according to Matthews.
To try and address these issues of overcrowding, the Population Review Team meets once a week to review the county’s jail cases to find ways to reduce bail, alter criminal offenses and, in some cases, eliminate or reduce jail time completely.
Toledo isn’t alone in dealing with overcrowded jails.
Nationally, jail populations have been steadily rising, contributing to high incarceration rates throughout the country. Daily local jail populations swelled from 157,000 in 1970 to over 700,000 people in 2015. Annually, there are close to 11 million admissions into jails, according to data collected by the Vera Institute of Justice.
“It’s become a crisis because as we’ve added laws that impose mandatory sentencing,” says Gene A. Zmuda, a common pleas court judge for Lucas County. “We are incarcerating more and more of our population.”
For those on the Population Review Team — along with Matthews, the group includes local correction officers and defense attorneys — this means reviewing rap sheets to determine if there are ways to release inmates without putting the public at risk, such as increased usage of electronic monitoring.
In other cases, plea deals are brokered, according to Sean McNulty, chief public defender for the Toledo Legal Aid Society and an original member of the review team. Candidates who are deemed “good” — those with misdemeanor charges or nonviolent crimes — can have their bail modified or their case expedited or, in some cases, they are simply set free.
Zmuda invokes an example of a first-time drug user. “Maybe jail isn’t the right place for that person,” he says. “Send them to rehabilitation and break the cycle of addiction.”
The program started in 2016, after the John D. and Catherine T. MacArthur Foundation awarded the county a $2 million grant directing local mental-health organizations to partner with law enforcement officials, with the intent to “institute changes aimed at reducing local incarceration and disparities in jail usage in accordance with its implementation plan.”
Over the course of an afternoon, the team isolates about a dozen defendants in custody whose charges will be reviewed. During a recent meeting, McNulty and John Madigan, the city’s prosecutor, were able to agree to several resolutions for a handful of people who were sitting in the county’s jail. The negotiations included a reduced charge, credit for time served and a probation term.
According to Matthews, this comprehensive collaboration and review reduced 1,800 jail days in total for 2017. And while the jail’s population isn’t as low as officials want it to be, they point to the reductions they’ve made in the past two years, by almost two hundred inmates in total.
“Jail buildup happened over 40 years and it won’t be solved in just a year or two,” says Patrick Griffin, the senior program officer for the MacArthur Foundation.
Along with the review board meetings, Lucas County officials have implemented four other strategies — such as training cops to identify alternatives to arrests or keeping people with mental health issues out of jail — to help in reducing the county’s jail population.
And as the initiative continues, Griffin hopes that solutions like the ones being implemented in Lucas County will spread to other parts of the state, and beyond.
“It will take success and then practitioners will take notice,” he says. “We have to increase demand among citizens for jail reform.”
Zmuda, McNulty and others believe that the next important step will be addressing the overrepresentation of minors in the system, along with keeping substance abusers from getting swept into the jail.
“We’re holding fewer — and holding the right — people,” says Zmuda. “We have right-sized our jail.”
Tag: bail
Our Bail System Isn’t Working
For the past few years, states have been slowly making progress on reforming their criminal justice laws, including throwing out past marijuana infractions, ending solitary confinement for juveniles and recommending significantly less jail time for nonviolent crimes.
Now, bail reform is getting its time in the spotlight — or in the hot seat, depending — as New Jersey marks its one-year anniversary of ending the practice that requires defendants to pay their way out of jail before a trial. (Currently, the state releases low-level offenders to their homes, while others are held for 48 hours; during that time, prosecutors put together a criminal profile that determines if a person will be kept in prison.)
Many lawmakers are taking up similar reform strategies, as overhauling the nation’s bail system also makes for smart across-the-aisle politics in a time of heightened partisanship. Senators Kamala Harris, D-Calif., and Rand Paul, R-Ky., last year introduced a bill that would incentivize states to end or reform their money-bail programs.
Bail was originally intended to motivate defendants to show up for all of their hearings; if they do so, their money is given back to them once their trial is over. But studies have found that posting bail — which can cost tens of thousands of dollars, depending on the crime — is no guarantee that someone will return to the courtroom. In the meantime, defendants arrested for a low-level offense and can’t afford bail often sit in jail for days or weeks, costing them time away from family and their jobs, and costing taxpayers an average of $38 million every day.
Data from a 2016 study conducted in Pennsylvania by Columbia University researchers found that there was no correlation between being released on bail and returning to court. What the researchers did find, however, is that those who couldn’t afford their bail and thus remained in jail were more likely to commit future crimes by almost 10 percent. The study also found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” In other words, our current money-bail system is one in which a minor offense often leads to more offenses, entrapping low-income people in a cycle of incarceration simply because they’re unable to pay.
What’s more, the Bronx Freedom Fund in New York City, which bails out people without requiring reimbursement, has found that nearly all of the defendants they sponsor do return to court, despite not having a financial incentive for doing so.
“We know that bail does not make people return to court in greater percentages,” says Jonathan Lippman, the former chief judge for the New York Court of Appeals and current chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform. In fact, he says, “The people who return to court are absolutely at the percentages of those [who weren’t required to post] bail at all.”
Lippman, among others, has been a supporter of using algorithms, or risk-assessment models, to decide whether bail should be mandated for a defendant.
Judges in more than half of the nation rely on these models in some way. Inputting data, such as whether a defendant has a criminal record and the zip code where they live, is used to determine how likely it is that the person will later show up in court.
But risk-assessment tools aren’t a perfect panacea, say critics, and their widespread use can still lead to racial or economic biases.
A recent class-action lawsuit filed in Harris County, Texas, concluded that those with money are given preferential treatment when calculating data; for example, the risk-assessment tool used to determine whether or not someone would return for trial gave the same weight to being poor as it did to having a prior offense.
“Under the County’s risk-assessment point system … poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court,” a federal appeals court decided. “Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”
Richard Berk, who created the algorithm currently used in Pennsylvania’s risk-assessment tool, says that it’s a fool’s errand to think that algorithms would create a perfect environment.
“The question is not whether the algorithms are accurate and fair, but whether they are more accurate and more fair than current practice,” Berk said in an email. “So we can reduce errors and reduce bias, which does not mean that the accuracy is perfect and that all possible bias is gone. As they say, we cannot let the perfect be the enemy of the good.”
But as more states take on reforming their bail practices, a uniquely American institution is at risk: the commercial bail-bond industry.
Bail-bond offices put up money for a defendant while typically keeping 10 percent. If defendants don’t show up to court, the bond office gets fined, and a bounty hunter is dispatched to find the missing person.
Though the bail-bond services industry grew by almost 3 percent between 2011 and 2016 and brought in $2 billion in revenue, it’s now facing increasing pressure as some jurisdictions have done away with the need for bail bondsmen altogether by eliminating cash bail.
In New Jersey, for example, bail-bond shops have seen a dramatic reduction in business and are operating under threat of closing. Last summer, reality TV star Duane “Dog the Bounty Hunter” Chapman stood outside a New Jersey courthouse and claimed that the elimination of bail bonds were “killing people.”
But for bail-reform advocates, Chapman’s argument is stale. And like it or not, that reform is coming, as New York, Delaware and California are all looking to eliminate — or at least reconsider — their money-bail practices.
“You have a lot of research to show that bail is harmful. Those points need to be disseminated,” says Zoë Towns, the director of criminal justice programs at the bipartisan advocacy group FWD.us, in response to how reform might affect bail-bond business owners. “Our position on bail reform and justice is looking at how we can drive down incarceration rates, and that may mean that structures within and outside the system need to be changed.”
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An earlier version of this story identified FWD.us as a left-leaning organization, not a bipartisan one. We regret the error.
Each Day, 731,000 People Are in Jail. How Many Are There Simply Because They Can’t Afford to Make Bail?
Kalief Browder spent three years in jail despite never being convicted of a crime.
He was arrested for a stealing a backpack in the Bronx — a crime the then 16-year-old maintained he didn’t commit. His mother was unable to put up the $3,000 bail, so he was locked in solitary confinement on Rikers Island, New York City’s central jail, for roughly two years as he awaited trial. Browder tried to commit suicide several times — once with shredded bed sheets hung from a light fixture — and suffered physical abuse from guards and inmates alike, as detailed in The New Yorker.
In 2013, prosecutors dismissed the charges, and he was released. Last month, Browder committed suicide, sparking a wave outrage against the system that had imprisoned a young man for years only on the basis of an accusation. With its “unfortunately-long history of horrible abuses,” Rikers Island became an “example of failing to save jail for people who are convicted, as opposed to people who have just been accused,” Karin Martin, professor at John Jay College of Criminal Justice, tells NPR. “We’re realizing that we can’t afford, both financially and kind of morally, the horrible impacts of mass incarceration.”
In New York City, the emotional outpouring that resulted from Browder’s premature death recently crystallized into real reform as Mayor Bill de Blasio announced a sweeping, $18 million overhaul of the city’s bail system. Since 2009, the Big Apple had tested alternatives to monetary bail at a jail in Queens, offering “supervised release” through a nonprofit to low-level or nonviolent offenders. The only requirement? That a person had to do was check in regularly. Nearly nine out of 10 defendants — 87 percent — still showed up to court. Similar to programs in Washington, D.C., Chicago, Charlotte and Phoenix and states like Kentucky, Arizona and New Jersey, nonprofits in the Big Apple will be following up with text messages reminders, visits with case managers and other check-ins to ensure that people keep their date with the judge.
“We know that there are thousands of people who are now being held pre-trial in the city’s jails simply because they cannot afford to pay a few hundred dollars in bail. Instead, they are held at great expense in jail and frequently lose their jobs, have to drop out of school and lose daily contact with their children and families,” Michael Jacobson, executive director of the CUNY Institute for State and Local Governance, says in a statement. “Using risk as a standard for pre-trial detention as opposed to how much money someone has will increase public safety, reduce unnecessary and costly detention and make our pre-trial system more fair and just.”
Jails don’t get the same attention as their larger counterparts, state and federal prisons, but the average American is 19 times more likely to be locked up locally than thrown in the slammer. On any given day, 731,000 people are in jail; about 12 million people are admitted in the course of a typical year, according to research by the Vera Institute of Justice. Some are serving out a sentence, but most are simply waiting for their case to be resolved, either through a trial or a plea.
Though the cash bail system is intended to ensure that a person shows up for trial, it’s the most significant reason why some remain locked up and others are released. Put simply, if the accused or his family can’t find the cash for baile fast enough (or at all), he or she will remain behind bars. Most of the time, bail isn’t astronomically expensive. In New York, more than half — 54 percent — of inmates held through the end of their case were behind bars because they couldn’t post bail of $2,500 or less, mostly for misdemeanors.
“There’s no reason to keep people in jail at great costs, when they are no threat to anybody,” says Jonathan Lippman, chief judge of New York State. It “strips our justice system of its credibility and distorts its operation.”
To aid cities and states in determining whether a person is likely to reoffend, the John and Laura Arnold Foundation developed risk assessment tools. Among the key factors that are considered are the person’s age and criminal history, including any prior incarcerations and failures to appear in court, as well as whether the current offense is violent, Anne Milgram, the foundation’s vice president of criminal justice, tells NationSwell. Drug use, employment and other criteria traditionally weighed at arraignment hearings are almost meaningless, she adds.
The judges who used the Arnold Foundation’s criteria have seen notable drops in the jail population and correlated drops in crime. In Charlotte, for example, the number of inmates dropped 20 percent.
“The central challenge of our work has been getting people on board thinking a little differently about how these decisions are made,” says Milgram, a former criminal prosecutor. “There’s a lot of individual discretion for police, prosecutors and courts, but we haven’t used objective data to inform those decisions. We’re not taking away any decision making; we’re providing information that you both need and should want.”
New York will likely develop their own “updated science-driven risk assessment tool” in the near future (Manhattan District Attorney Cyrus Vance called for one), pending an update to state law in Albany.
There’s been some criticism leveled at the latest changes in Gotham by some of bail reform’s biggest promoters. Robin Steinberg, executive director of The Bronx Defenders, a legal aid service, and David Feige, board chair of The Bronx Freedom Fund, which assists those charged with a misdemeanor make bail for $2,000 or less, both called the reforms “long overdue” but stressed that the city must not intrude too far into the lives of defendants. There’s no benefit in being released from jail, they say, if an organization can impose even stricter pretrial requirements, the violation of which could result in reincarceration or other penalties.
“Here’s how it works: A young man arrested for shoplifting might plead guilty and be sentenced to perform one day of community service. But that same defendant who is innocent of the charge might, as a condition of his release, be ordered to attend a one-day drug education program, report to a pretrial-services officer every week, and undergo drug treatment or testing — all because he claimed to be innocent and sought to challenge his arrest,” Steinberg and Feige write in an op-ed for The Marshall Project. “The problem with the pretrial-services model is that these ‘services’ … are often identical to, and sometimes far more onerous than the sentence one would receive for actually being guilty of the crime.”
Natalie Grybauskas, assistant press secretary for the city, tells NationSwell that the only conditions for release will be “whatever check-ins are deemed appropriate by the provider.” Any added services, like a referral to drug education, will be voluntary.
The city expects to select providers from a group of applicants in the fall, she adds.