To al­le­vi­ate over­crowd­ing, gov­ern­ments are look­ing to jails, not prisons

The Washington Post Sunday - - POL­I­TICS & THE NA­TION - MAX EHREN­FRE­UND max.ehren­fre­und@wash­post.com Ex­cerpted from wash­ing­ton­post.com/ blogs/ Wonkblog.

The first of the con­voys left Albuquerque in Au­gust 2013. A cruiser would take the lead, fol­lowed by a few buses and vans and an­other cruiser at the rear. For more than a year, they fer­ried in­mates be­tween an over­crowded jail on the city’s out­skirts and an­other fa­cil­ity with empty cells, more than 800 miles away.

The jail in Albuquerque, like many others around the coun­try, didn’t have enough room. Au­thor­i­ties were spend­ing $35,000 per day to house in­mates out­side the county.

“This was some­thing that had to be done,” said Capt. Ray Gon­za­les of the Met­ro­pol­i­tan De­ten­tion Cen­ter in Albuquerque.

Then, things changed. The jail in­mate num­bers plum­meted. The con­voys stopped. Ber­nalillo County, which in­cludes Albuquerque, now in­car­cer­ates 38 per­cent fewer peo­ple than it did in 2013.

Jails such as Albuquerque’s have gone al­most un­men­tioned in the bi­par­ti­san dis­cus­sion about the huge num­ber of Amer­i­cans be­hind bars, which has largely fo­cused on prisons.

This week, Pres­i­dent Obama com­muted the sen­tences of 46 pris­on­ers, called on Con­gress to re­form prison sen­tences and be­came the first sit­ting pres­i­dent to visit a fed­eral pen­i­ten­tiary.

Sen­tenc­ing re­form would take enor­mous leg­isla­tive ef­fort, but the ef­fect on the in­car­cer­ated pop­u­la­tion as a whole would be small com­pared with what has al­ready hap­pened in some jails around the coun­try and what could hap­pen at many more.

Jails might look sim­i­lar to prisons from the out­side, but the dif­fer­ences are cru­cial to un­der­stand­ing the chal­lenges of in­car­cer­a­tion in Amer­ica.

The fed­eral gov­ern­ment or states run prisons, while most jails are run by lo­cal gov­ern­ments. Prisons house con­victed crim­i­nals who are serv­ing their sen­tences, while about three in five jail in­mates have yet to go to trial.

The scope of the jail sys­tem is much larger, and be­cause the in­mates in jails are less likely to be dan­ger­ous crim­i­nals, po­lit­i­cal progress may be more fea­si­ble.

“Jails re­ally are where the ac­tion is in terms of ad­dress­ing mass in­car­cer­a­tion,” said Cherise Fanno Bur­deen. She is the ex­ec­u­tive di­rec­tor of the Pre­trial Jus­tice In­sti­tute, a re­search or­ga­ni­za­tion.

That’s what of­fi­cials have dis­cov­ered in New Or­leans, Ham­p­den County, Mass., and Mesa County, Colo., all places that saw rapid re­duc­tions in jail pop­u­la­tions. “That type of de­cline could never hap­pen in a state prison,” said Chris­tian Hen­rich­son, an an­a­lyst at the Vera In­sti­tute of Jus­tice. “It’s just, for all pur­poses, not math­e­mat­i­cally pos­si­ble.”

‘More puni­tive about ev­ery­thing’

The pop­u­la­tion in Amer­i­can prisons be­gan to in­crease in the 1970s when Con­gress and state leg­is­la­tures started pass­ing harsher sen­tenc­ing laws in re­sponse to ris­ing rates of vi­o­lent crimes. As crim­i­nals were con­victed, they stayed in prison longer, and the num­ber of pris­on­ers rose.

Tak­ing state and fed­eral pris­on­ers to­gether, just un­der half have been con­victed of vi­o­lent crimes. Such crimes are rare, but vi­o­lent crim­i­nals serve longer sen­tences and make up a larger share of the pop­u­la­tion as a re­sult.

Mean­while, the pop­u­la­tion in jail in­creased too, more than dou­bling be­tween 1983 and 2007.

Un­like those in prison, most peo­ple in jail haven’t been con­victed. Many others are men­tally ill, one re­sult of a shift away from hous­ing pa­tients in large hos­pi­tals.

Al­though jails house around 745,000 peo­ple at any given time, mil­lions of Amer­i­cans— there’s no pre­cise es­ti­mate — en­ter and exit the coun­try’s jails ev­ery year. The av­er­age in­mate’s stay in a jail is 23 days com­pared with roughly two years in state prisons.

“You have a lot more peo­ple touched by the jail sys­tem than by the prison sys­tem,” said Jesse Jan­netta, a scholar at the Ur­ban In­sti­tute.

End­ing an era

Politi­cians in both par­ties have sug­gested re­duc­ing prison terms for mi­nor of­fenses.

But th­ese ef­forts would af­fect a small num­ber of pris­on­ers. Many pris­on­ers were con­victed of more se­ri­ous crimes, and they wouldn’t be el­i­gi­ble. In jails, there are far more in­mates who haven’t com­mit­ted acts of vi­o­lence.

In fact, ev­i­dence is mounting that re­duc­ing the num­ber of jail in­mates can make the pub­lic safer. Re­searchers have found that de­fen­dants who are de­tained in jail be­come more likely to com­mit ad­di­tional of­fenses. Even a few­days in jail can be dev­as­tat­ing. A stu­dent who misses a few classes be­cause she’s be­hind bars might have to drop out for a se­mes­ter, and a bus­boy who misses just one shift might lose his job.

Those stints ap­pear es­pe­cially risky for the men­tally ill. The sui­cide rate in prisons is only slightly higher than that in the gen­eral pop­u­la­tion, but the rate in jails is more than three times as high.

A for­mula for de­ter­min­ing bail

Bail is a com­po­nent of the courts that dates at least to bib­li­cal times.

But crit­ics say that bail puts harm­less de­fen­dants be­hind bars be­cause they can’t pay while al­low­ing dan­ger­ous crim­i­nals with fi­nan­cial re­sources to go free un­til their trial.

“If you think about re­ally sig­nif­i­cant crim­i­nal or­ga­ni­za­tions and in­di­vid­u­als, they can meet many of the con­di­tions that are placed on them,” said former New Jersey at­tor­ney gen­eral Anne Mil­gram. The state’s Repub­li­can gov­er­nor, Chris Christie, signed into law a change in bail pol­icy last year.

New Jersey’s law es­tab­lishes a sys­tem sim­i­lar to one set up in 2011 in Ken­tucky, where judges use a for­mula to es­ti­mate the odds that de­fen­dants will flee or com­mit other crimes be­fore their cases go to trial. The for­mula uses ac­tu­ar­ial data, specif­i­cally a de­fen­dant’s age and crim­i­nal his­tory.

New York, Chicago, Mil­wau­kee, Toledo, Pitts­burgh and other cities also plan to em­u­late Ken­tucky’s sys­tem.

Nick Wachin­ski, who un­til re­cently was the ex­ec­u­tive di­rec­tor of the Amer­i­can Bail Coali­tion, a trade group, ar­gued that com­mer­cial bail is an ef­fec­tive and in­ex­pen­sive way to en­sure that de­fen­dants show up to court.

“This is some­thing that we’ve been do­ing as an in­dus­try now for decades. The record of per­for­mance is tried and true and proven,” Wachin­ski said, while ac­knowl­edg­ing some changes would be ben­e­fi­cial.

Some­times, re­duc­ing the jail pop­u­la­tion is as sim­ple as get­ting of­fi­cials from dif­fer­ent agen­cies to com­pare notes. Co­or­di­na­tion is a com­mon prob­lem in this coun­try’s frag­mented, ad­ver­sar­ial crim­i­nal jus­tice sys­tem, said Mil­gram.

The war­den doesn’t de­cide who en­ters the jail or when they leave, and the peo­ple who make those de­ci­sions are used to see­ing each other as ri­vals. Po­lice and pub­lic de­fend­ers don’t al­ways trust each other. The data nec­es­sary to un­der­stand how a jail works aren’t all kept at one agency.

In Ber­nalillo County, the state funds and op­er­ates the courts while lo­cal of­fi­cials man­age the jail. State and county of­fi­cials hadn’t been talk­ing to each other.

“There was a lot of dis­trust, and an­i­mos­ity to some ex­tent,” re­called Lisa Simp­son, a lawyer whom Ber­nalillo County ap­pointed to help re­duce the jail pop­u­la­tion.

Once Simp­son and her col­leagues took a close look at jail and court records, they re­al­ized that pro­ba­tion­ers and sus­pects in mi­nor crimes were fill­ing up many of the cells.

The county gov­ern­ment paid more judges to hear pro­ba­tion hear­ings in the state-run courts. And the prose­cu­tor’s of­fice hired an ad­di­tional as­sis­tant dis­trict at­tor­ney to han­dle mi­nor of­fenses. With the ex­tra man­power, the courts be­gan to va­cate the jail. The guards have now closed a sub­sec­tion for main­te­nance.

SAUL LOEB/AGENCE FRANCE-PRESSE VIA GETTY IMAGES

A po­lice of­fi­cer and a prison guard pa­trol the en­trance of the fed­eral prison in El Reno, Okla., dur­ing Pres­i­dent Obama’s visit to the fa­cil­ity last week.

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