The key to safer, less costly jails? Re­duce pre­trial de­ten­tion

The Arizona Republic - - VIEW POINTS -

A class-ac­tion law­suit in the 1990s de­tailed harm­ful con­di­tions in Mari­copa County jails, in­clud­ing feed­ing in­mates con­tam­i­nated food and keep­ing men­tally ill de­tainees in soli­tary con­fine­ment.

Ar­paio’s ac­tions ul­ti­mately were re­pu­di­ated by vot­ers in 2016, but his “tough on crime” poli­cies still ap­peal to many Amer­i­cans, in­clud­ing some in the Trump ad­min­is­tra­tion. They echo an era when the only so­lu­tion for crime was to­tal war: mass in­car­cer­a­tion, harsh sen­tences and lit­tle dis­tinc­tion be­tween king­pins and users.

But the crim­i­nal jus­tice lit­er­a­ture is clear that a pun­ish­ment’s swift­ness and cer­tainty mat­ter far more than its length, and that longer de­ten­tions while await­ing trial ac­tu­ally may in­duce re­of­fend­ing.

In fact, more re­cent data sug­gests that poli­cies to slim in­car­cer­ated pop­u­la­tions by di­vert­ing low-level of­fend­ers — bet­ter suited for treat­ment than in­car­cer­a­tion — also are ef­fec­tive at re­duc­ing over­all crime rates.

Still, the prob­lem of men­tal ill­ness within Ari­zona’s crim­i­nal jus­tice sys­tem looms. In Pima County, for ex­am­ple, men­tal ill­ness and sub­stance abuse af­fect 60 per­cent of the jail pop­u­la­tion. Equally trou­bling is that 80 per­cent of jail de­tainees have not been con­victed of a crime and are await­ing trial.

Across Amer­ica, the pre-trial pop­u­la­tion has driven 99 per­cent of jail pop­u­la­tion growth over the past 15 years. Put an­other way, 99 per­cent of the jail pop­u­la­tion in­crease over the past 15 years was in the de­ten­tion of cit­i­zens who are pre­sumed, un­der the law, to be in­no­cent. Tax­pay­ers foot that bill. The na­tion­wide costs of jails grew from $5.7 bil­lion in 1983 to $22.2 bil­lion in 2011.

The re­turn on in­vest­ment for th­ese sky­rock­et­ing jail costs has been piti­ful. Jail­ing the men­tally ill pre­dis­poses them to high rates of re­cidi­vism and makes them more likely to com­mit sui­cide. To ad­dress this moral and fis­cal cri­sis, Pima County de­cided to take ac­tion.

Part­ner­ing with the MacArthur Foun­da­tion’s Safety and Jus­tice Chal­lenge, Pima County is in­tro­duc­ing a two-step screen­ing ap­proach to their de­ten­tion cen­ter. Be­fore this ini­tia­tive, fi­nan­cial con­straints meant that only a por­tion of de­fen­dants fac­ing mis­de­meanors could

be vet­ted for how likely they were to ap­pear in court.

Those who could not be screened were de­tained in jail un­til trial. A grant from the foun­da­tion will al­low pre­trial ser­vices to ex­pand ev­i­dence-based screen­ing to all de­fen­dants to as­sess their like­li­hood to ap­pear.

The county also will im­ple­ment be­hav­ioral health screen­ings be­fore a pre­trial de­tainee’s ini­tial court ap­pear­ance. This sim­ple step gives judges safe al­ter­na­tives to in­car­cer­a­tion and will in­crease the county’s ca­pac­ity to su­per­vise those in­di­vid­u­als with be­hav­ioral health needs once they are re­leased.

Through its plan, and other re­form ef­forts, Pima County aims to save tax­pay­ers $2.7 mil­lion a year and re­duce its jail pop­u­la­tion by 17 per­cent over the next three years.

State of­fi­cials share Pima’s de­sire to re­form a spi­ral­ing jus­tice sys­tem. In March 2016, Ari­zona Supreme Court Chief Jus­tice Scott Bales is­sued Ad­min­is­tra­tive Or­der No. 2016-16, which es­tab­lished the Task Force on Fair Jus­tice for All.

The task force’s re­port, is­sued last fall, listed 65 rec­om­men­da­tions for al­ter­na­tives to jail that would en­sure a smarter and more ef­fec­tive crim­i­nal jus­tice sys­tem.

Among the rec­om­men­da­tions were to con­sider “the use of spe­cialty courts and other avail­able re­sources to ad­dress a de­fen­dant’s treat­ment and ser­vice needs, as well as risk to the com­mu­nity,” be­fore re­flex­ively in­car­cer­at­ing spe­cial needs de­fen­dants. It also rec­om­mended re­vis­ing “men­tal health com­pe­tency statutes for ex­pe­dit­ing men­tal com­pe­tency pro­ceed­ings for mis­de­meanor cases.”

The task force high­lighted that the uptick in pre­trial de­ten­tion pop­u­la­tions have been driven, in part, by the cash bail sys­tem. Fac­tors such as loss of em­ploy­ment, evic­tion and in­creased ex­po­sure to neg­a­tive in­flu­ences while in jail all likely play a role in why pre­trial de­ten­tion cor­re­lates with a higher like­li­hood to re­of­fend.

For th­ese rea­sons, the re­port found that “pre-trial de­ten­tion should be avoided to the ex­tent pos­si­ble.”

Only low-level of­fend­ers who meet spe­cific re­quire­ments and who have doc­u­mented be­hav­ioral health is­sues are con­sid­ered di­ver­sion can­di­dates and, of course, those re­leased for post­book­ing treat­ment still face charges.

This ap­proach is ef­fec­tive in that it es­chews the ma­cho im­pulse to “lock ‘em up and throw away the keys.” It fo­cuses on re­duc­ing crime by min­i­miz­ing re­cidi­vism and sav­ing the spi­ral­ing costs of in­car­cer­a­tion at their in­cep­tion, in lo­cal jails.

Though it is too of­ten ig­nored in the crim­i­nal jus­tice re­form di­a­logue, treat­ing the men­tally ill and drug ad­dicted as pa­tients in­stead of crim­i­nals should be a fo­cal point for re­form.

Arthur Rizer is R Street’s na­tional se­cu­rity and jus­tice pol­icy di­rec­tor and Jon Haggerty is a pol­icy as­so­ciate at the R Street In­sti­tute. Fol­low them on Twit­ter, @ArthurRize­r, @RplusLe­qual­sJLH.


Ari­zona judges have been urged to rely on per­sonal risk fac­tors to de­ter­mine re­lease con­di­tions rather than a stan­dard­ized dol­lar amount.

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