Fixes looks at solutions to social problems and why they work.
Kalief Browder hanged himself last month. He was 22. You may well know of him; he was 16 when he was arrested in the Bronx for allegedly stealing a backpack. Three years later, the charges were dropped for lack of evidence, but Browder spent those three years in Rikers Island jail, two of them in solitary confinement.
He tried to commit suicide several times in solitary, and again in November 2013, after his release. Jennifer Gonnerman wrote Browder’s story in The New Yorker, and with it put a face on the abuses of Rikers Island.
That followed a New York Times investigation of abuses of the mentally ill in Rikers and a “Lord of the Flies” report by United States Attorney Preet Bharara about guards’ abuse of teenagers. The Justice Department filed a lawsuit as well.
Some good has come from Browder’s tragedy. New York City’s mayor, Bill de Blasio, announced that 16- and 17-year-old detainees would no longer be put in solitary at Rikers and later revised that to 21 and younger. In April, the city announced a plan to cut court delays (wait times for a trial in the Bronx have been as long as five years). Such reform programs have been seen before. But perhaps, this time ….
Another reform is needed. None of what happened to Browder could have occurred had he not been in Rikers to begin with. He was there not because he was a risk to public security or was unlikely to show up in court, but because he couldn’t pay his bail. Browder was on probation after having pled guilty eight months before to stealing a delivery truck and crashing it into a parked car. He told Gunnerman his friend was actually the culprit but pled guilty because he had no defense. Now his bail was set at $3,000. His family didn’t have $3,000, so he stayed in jail.
Because he was poor, the city spent a half million dollars to keep him in jail for three years. Because he was poor, Browder spent nearly a sixth of his life in jail and a tenth of his life in solitary confinement. Because he was poor, he died.
Pretrial detention should be reserved for flight risks or dangers to society. Yet 62 percent of people in jail in America are awaiting trial (up from 40 percent 30 years ago) — and most are charged with crimes no more dangerous than shoplifting, driving with a suspended license, public drunkenness, drug possession, missing their curfew or otherwise violating parole. Pre-trial detention fills jails in America with people who need help — around two-thirds of detainees have a mental illness or are substance abusers — and it makes their problems worse.
Many detainees spend more time in jail before trial than the maximum sentence for the charge against them. “The system punishes these individuals while they are presumed to be innocent, and then releases them once they are found guilty,” said a report published in February by the Vera Institute of Justice, which works with governments to demonstrate and evaluate innovative projects in criminal justice. The first pre-trial services program in the United States, the Vera Manhattan Bail Project, began in 1961. The organization is still fighting that battle.
There are exceptions to this trend, cities and states that have drastically reduced pre-trial detention with no increase in crime or no-shows. Some are highlighted in the Vera report and others in a study on racial disparities in jails published last week by the Brennan Center, a research and advocacy group at the New York University School of Law.
For juvenile justice, Multnomah County, Ore., whose county seat is Portland, is one such place. In 1992, the county became one of the first jurisdictions to work with the Juvenile Detention Alternatives Initiative developed by the Baltimore-based Annie E. Casey Foundation.
New Jersey is another, with the first statewide juvenile detention alternative program, which has become a model.
The first step in these programs is to help judges limit pretrial detention to defendants who merit it. In Oregon, a committee chosen from people across the justice system developed a list of factors that predicted no-shows or the likelihood of new crimes and sought to reduce racial bias. For example, they dropped criteria like “good family structure” in favor of “is there an adult willing to be responsible for taking the child to court?”
The list can be overridden, and has changed as research has improved. Today, about a tenth of American jurisdictions use objective risk assessments, but they are starting to spread. The Times reported on Saturday on an algorithm developed by the Arnold Foundation after identifying factors associated with flight or new crimes in 1.5 million criminal cases. Several states and major cities are adopting it.
Another step in Multnomah County and New Jersey was creating alternatives other than detention and release. The county instituted ways for an offender to be monitored in the community, including electronic bracelets, regular reporting to a caseworker, shelter beds, foster homes and a center where the police could take youths with minor offenses, including probation violations — which were responsible for 20 to 30 percent of detentions. “You don’t want to be taking a kid who’s out past curfew to jail,” said Brian Detman, who manages the county program.
The program has reduced detention, with no ill effects. In 1994, Portland detained 42 percent of all youths of color whom police brought in, and 32 percent of white youths. By 2000, detention rates were 22 percent for both groups, with no rise in crime or no-shows.
Defendants in alternative programs have had a 4 percent rate of re-offending before trial and a 2 percent no-show rate, he said. And it is cheaper than jail: detention costs the county more than $300 a night per person. A shelter bed costs between $95 and $148, and community monitoring even less.
Other jurisdictions have also reduced detention. Nearly 300 counties now have the juvenile detention alternative program.
The success of many of those efforts belies the excuses of jurisdictions that still detain large numbers of juveniles or adults before trial — which is most of them. Despite current low crime rates and much talk about reducing incarceration, pre-trial detention is at record levels.
Why is this, since crimes and arrests are down? (The exception is the war on drugs; arrests peaked in 2006 but are still far higher than 30 years ago.) It’s because of what happens after arrest. In 1985, with crime much higher than today, about half of people arrested were cited and released. By 2012, 95 percent of people arrested were detained.
Another cause of needless and discriminatory detention is the money bail system, in which detainees must give the court cash, and forfeit it if they don’t show up. (Money bail is generally not used with juveniles, Browder was given bail because in New York, shamefully, 16-year-olds are charged as adults.)
The use of money bail has soared in America. In 1990, about half of felony defendants were released on their own recognizance; by 2009, less than a fourth quarter were. Over about the same time, bail became more expensive, with the average rising by 43 percent, the Vera report said.
Money bail brings no benefits. In Washington D.C., it is illegal. About 15 percent of people arrested are detained. The rest are released, with or without supervision or services. The system works well and saves money.
The overwhelming evidence is that money bail is no better than other systems at getting people to come back to court. Risk assessments are far more effective — as is simply reminding defendants of their court date by phone or text message. (Bail was never intended to reduce crimes, and it does not.)
Using money to determine who is detained allows those who are dangerous but rich to go free. Far more widespread is the opposite problem. In New York City, more than half the people in pretrial detention are there because they couldn’t pay bail of $2,500 or less. More than 30 percent of non-felony defendants were held because they couldn’t pay bail of $500 or less.
Cities spend four times as much on jails today as they did in 1983, in constant dollars. But the real cost is borne by detainees. Defendants are charged for laundry, room and board, phone calls, even sometimes their own booking. And while in jail, they aren’t making money. They lose jobs. They fall behind on rent, car payments and child support. And being detained is associated with more guilty pleas and longer sentences, in part because detainees are less able to defend themselves.
Most ironic, pre-trial detention increases crime. An Arnold Foundation study of low-risk defendants in Kentucky compared defendants who were detained or not detained. Researchers found that detention led to more crimes and failures to appear. Even two or three days of detention led to a 40 percent increase in new crimes committed before trial — in part because of who detainees meet in jail.
“I hear over and over: ‘I went in not knowing anything and I learned how to be a criminal. I learned how to steal cars. I wouldn’t have thought to do that before,’” said Nate Balis, director of the juvenile justice strategy group at Annie E. Casey. “The last thing you want is to introduce them to kids who will introduce them to a life of crime.”
While Multnomah County has kept juvenile pre-trial detention low, it has not sustained the gains it once made in reducing racial disparities. New Jersey, which has reduced its juvenile detention population by 60 percent, has done better, but the reduction in disparities is small. It’s a problem nationwide, Balis said. “What’s especially disappointing is that reducing racial disparities has been at the forefront of the work. Each jurisdiction from the outset is looking at this.”
Reducing disparities is tough in part because they begin well before judges make decisions about detention. Blacks and Hispanics, once arrested, are more likely to be detained before trial than are whites. But at every point leading to that — being stopped, being arrested, being charged —the criminal justice system also treats them more harshly than whites ion similar situations.
The issue, then, is how to reduce practices earlier in the process that lead to overdetention of minorities. Detman said that in Multnomah County, early-intervention programs fell victim to more than 10 years of successive budget cuts. New Jersey seeks to intervene at various points where detention affects minority kids. Jennifer LeBaron, director of the New Jersey Juvenile Justice Commission’s office of local programs and services, said one example is putting together family crisis intervention organizations and the police so a juvenile isn’t automatically arrested if mom calls the cops during a family fight. “Police determine whether parents want to file a complaint or are really looking for help,” she said.
Multnomah County is now beginning a project in one city, Gresham, that would work with police to keep first-time low-level offenders out of the justice system. Instead, those offenders and their families would receive services in the community: mentoring, summer camps, parenting classes, cultural programming and referrals to substance abuse or mental health treatment.
“This builds on the community’s capacity to heal and achieve success with its own,” Detman said. “We can reduce the need to detain kids because we’re catching risky behaviors early.”
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Tina Rosenberg won a Pulitzer Prize for her book “The Haunted Land: Facing Europe’s Ghosts After Communism.” She is a former editorial writer for The Times and the author, most recently, of “Join the Club: How Peer Pressure Can Transform the World” and the World War II spy story e-book “D for Deception.” She is a co-founder of the Solutions Journalism Network, which supports rigorous reporting about responses to social problems.
An earlier version of this article reported incorrect statistics obtained from Brian Detman, who manages the Multnomah County alternative juvenile detention program. Defendants in the program have a 4 percent rate of re-offending, not 2 percent. They have a 2 percent rate of no-show, not 4 percent. Also, the cost for a shelter bed is from $95 a day to $148, not $40.