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Friday, February 25, 2011

Want to Cut Costs? Release More Prisoners

In an era where states are looking to do anything to bring down budget deficits, they may be overlooking one of the most important costs they generate in the criminal justice system: pretrial detention.   Many people would be surprised to know that the majority of people in our nation’s jails are those detained pretrial, not convicts.  And what often happens is that detention begets more detention.  People who are detained pretrial are more likely to get longer prison terms later because defendants have little bargaining power in plea bargaining when they are locked up.  Worse, judges often keep the status quo in sentencing (you’re in jail, you stay in jail, and vice versa).

We all know that the United States has the highest incarceration rates in the world and given the average costs to hold an inmate, this costs us a whopping $66 billion every year.  As a study I’ve recently worked on shows, the solution to this problem is now becoming clearer: states need to release more defendants pretrial to save money.  This will seriously decrease costs, unnecessary incarceration rates and do so without endangering public safety.

Some counties have already started down the road of releasing more inmates.  Recently, for instance, Miami-Dade County cut costs by supervising defendants outside jail at a total cost of around $400 per defendant.  And in Iowa, alternatives to jail saved one district $1.7 million in 2009.

These are great solutions but the obvious question that remains is: which defendants should states release from pretrial detention?  No state wants to release the next Jared Lee Loughner, and obviously there is a risk to releasing more people pretrial, so where does that leave states?  According to the recent empirical study that I conducted with economist Frank McIntyre, based on a dataset of over 100,000 felony defendants over a 15-year period, it looks like if we were smarter about which defendants we released pretrial, we could cut costs and decrease pretrial crime.  Generally speaking, our study shows that judges all over the country are detaining the wrong defendants and could release up to 25% more defendants safely—if they made decisions based on the evidence.   Looking at the data, it seems that judges are often detaining too many older defendants (people over 30), defendants with clean records, and defendants charged with fraud or public order offenses.  After careful consideration at a local level to ensure this is done properly, our model can easily be replicated in all U.S. counties to help policy makers release more defendants and save money—with the significant side-benefit of improving the safety of the public.

Posted by Shima Baradaran Baughman on February 25, 2011 at 05:05 PM | Permalink


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The question is not "which prisoners should be released?" The question is "which official should do the releasing?" And the answer to that second question is easy: Article III judges who do not have to take the political heat of getting the answer wrong. The only question is whether the state officials who would otherwise be faced with the unenviable task of bringing sense to the prison system can find some plausibly discrete way to pass the buck to the Article III courts.

In the context of Californian prisons right now, "Article III" means Stephen Reinhardt, Thelton Henderson, and Lawrence Carlton, the three-judge panel that ordered California to reduce its prison population to 137.5% of its capacity. Carter Phillips argued on behalf of California before SCOTUS that this order ought to be overturned, and the questions from the bench were pretty heated.

But I have my suspicions that California politicianss' outrage over the ruling of Reinhardt & Co. is mostly for show. Schwarzenegger (back in December) and Jerry Brown (now) must be secretly hoping that California loses the case, so that the debt-sunk state can shed some expensive -- and probably harmless -- inmates. (California's sentencing policies, driven by plebiscites, ludicrously impose substantial sentences on non-violent offenders with a history of petty crimes).

In short, if Carter Phillips wins this one, I doubt that his clients will be grateful. This is a case in which only a federal judge can save federalism from its own populist excesses -- and the subnational politicians on the left side of the "v." are probably the ones most eager to see federalism curtailed and their own autonomy constrained.

Posted by: Rick Hills | Feb 25, 2011 5:44:15 PM

you should research the historical aspects of - definition/importance/role of sufficient sureties; the multi-pronged meaning of bail; the accused's personal duty to find his/her bail; the consequence (then and now) a judge would face for failing to determine non-excessive bail; then compare to current practices.

Posted by: concerned citizen | Feb 27, 2011 12:01:24 AM

Thanks for the comment Rick and the interesting analysis of the California prison situation. I agree that sometimes these decisions should be left to unelected public officials that are not swayed by the "get tougher on crime" influence of the public. Though I still think that we really should consider not only "who decides" which prisoners to release, but--once we've determined that we are going to reduce our jail population--we really need to figure out which defendants we can release. This question invokes a different public safety issue that doesn't turn on who decides but the basis for the detention or the release.

Posted by: Shima Baradaran | Feb 27, 2011 1:25:39 AM

some jails have become overcrowded because judges have usurped the import of common law bail that were crafted over eons, the u.s. constitution, the 8th amendment, and the judiciary act of 1789. judges are/have been THE problem, as relates to non-excessive bail. {real estate is location location location. excessive bail is judges judges judges}. and those judges who have/do set excessive bails, violate the law, and do not suffer consequence whatsoever, as established by the law. judges bosses (other judges) do nothing to curtail this practice. and the PEOPLE nor its lawyers, do nothing to curtail/sanction the bosses. the import that bail brings to the due process of law prior to trial has been diluted, violated. all roads lead to rome, and all solution to the problem you endeavor to solve, leads BACK to the painstaken time tested system of due process and the import of bail. both bra of 1984 and salerno are inconstitutional. until overturned, a persons right to bail has ceased to exist in american jurisprudence.

Posted by: concerned citizen | Feb 27, 2011 8:11:41 AM

what would have happened pretrial in the case mentioned below, if it was prior to bra 1984.

here you have 83 year old man who has been detained since jan 20th, 2011, on 2, and only 2 specific charges - extortion and extortion conspiracy. he remains detained. this guy should have been admitted to bail within 24 hours of arrest. its been six weeks and still detained. swift due process deliberately arbitrarily stalled. pretrial liberty - gone. the days of only a jury of peers have power to take away liberty - gone. period. bra of 1984 and salerno - 100% certifiable unconstitutionality. and not a lawyer exists today that has the knowledge to void bra/salerno. terming this mans detention as a monumental travesty of justice is complete understatement.

Posted by: concerned citizen | Feb 27, 2011 9:36:09 AM

work-around solutions are all the rage, and oaths to uphold the constitution are passe. we all get it. welcome to the state of the union. identifying and voiding unconstitutional law is obligation of lawyers/judges/people, not a choice. salerno was complete utter misinterpretation of an obvious unconstitutional act of congress the bra of 1984. on a lighter note, i hear the congress will be putting forward a new act this session, entitled: the freedom of speech reform act of 2011.

Posted by: concerned citizen | Feb 27, 2011 10:13:07 AM

Thanks for your comments concerned citizen. I understand your frustration with the Bail Reform Act of 1984 and the United States v. Salerno opinion upholding it. I agree that the Supreme Court in Salerno (and in Bell v. Wolfish before that) neglected to recognize that due process rights are important in protecting defendants during the pretrial period. I have argued that in my paper, Due Process, Predictive Justice & the Presumption of Innocence (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1757624).

As you note, it is frustrating that in America we have neglected bail rights such that people (even those posing a low risk like those charged with white collar offenses*) no longer have automatic rights to release before trial. My ideal solution to our mass pretrial incarceration problem would be that judges be expected to release the vast majority of individuals with a simple consideration of flight risk rather than the more invasive review that now occurs (where judges weigh the evidence against the defendant and determine whether they are dangerous before they release the defendant). *But*, I also recognize the reality of bail in America. To dial-back the clock to the pre-1984 Bail Reform Act period where judges could not make predictions about defendants would be politically impossible at this point. That is why in my Predicting Violence paper discussed above I talk about how within our current legal framework, we can *still* release a lot more defendants (25%), who we are currently detaining--without a threat to the public or increased pretrial crime.

*I'm not sure Manocchio the "reputed mob boss" discussed in the Boston Globe article that you cite would qualify as someone who should be automatically released pretrial since given his resources, he may pose a serious flight risk.

Posted by: Shima Baradaran | Feb 27, 2011 11:08:46 AM

thanks for reply. but i'm done here. here are some parting comments before i go - the evidence based data derived from eons of cases that indelibly honed common law and led to a constitution of a new nation have been "trashed, trampled, spat upon" by bra of 1984 and salerno's egregious interpretation. problem - judges who refuse to establish non-excessive bail (laundry lists of excuses not acceptable in real administration of law), and a system's refusal to apply personal consequence to judges for failure to so.

on another lighter note - the u.s. criminal justice system 2011: all checks, no balances. when the chief justice number one concern, as expressed in his annual report(s), is judicial compensation, then houston - we have a problem. hello!!! and so long.

Posted by: concerned citizen | Feb 27, 2011 11:51:30 AM

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