Studies indicate that misdemeanor arrests have dropped substantially over the past several years particularly in big cities. Jacob Gershman reports in the Wall Street Journal that some experts see the drop as evidence of a “very deep reset of the fundamental relationship between police and public.” New York City saw misdemeanor arrests drop by 50% since 2010, with black men as the major beneficiaries. In St. Louis the arrest rate for black men declined by 80% since 2005, while Los Angeles saw a 47% drop in misdemeanor arrests since 2008. But as the article notes, many experts are confused about what is causing this drop. U.C. Irvine professor Alexandra Natapoff is probably correct in observing that “misdemeanor enforcement is much less sensitive to actual crime rates and influenced by changing political and cultural winds.” The annual numbers, even for reported felonies, is a lagging indicator which, while helpful in determining trends, does not accurately reflect the amount of crime in a given community. In the 1990s New York and San Francisco demonstrated that taking a tough, consistent approach on misdemeanor offenses resulted in reductions of all types of crime. In the places where reported misdemeanors have dropped significantly, aggressive enforcement of “quality of life” laws such a drug dealing, vagrancy, vandalism, theft and even some assaults have been abandoned, either through federal consent decrees against police departments, laws reducing or removing penalties, or political pressure. As we have learned first hand in California, when the consequences of criminal behavior are reduced or eliminated, you get more criminal behavior. So while reported misdemeanors are way down, dozens of unreported misdemeanors are occurring every minute on city streets filled with drug dealers, smash and grab thieves, porch pirates, drunks and drug-addicted homeless. For law enforcement reformers this is an acceptable price to pay for social justice. “We were locking people up for minor things,” said the Chief Strategy Officer for the Seattle Police Department. “There started to be a realization that you were often exacerbating the problem.”
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The government hasn’t collected national data on the race or ethnicity of people awaiting trial in jail since 2002. We review the academic literature published since then to offer a more current assessment of racial disparities in pretrial detention.
Being jailed before trial is no small matter: It can throw a defendant’s life into disarray and make it more likely that they will plead guilty just to get out of jail.1 As advocates bring national attention to these harms of pretrial detention, many places – most recently New Jersey, California, New York, and Colorado – have passed reforms intended to dramatically reduce pretrial populations.
But it’s not enough to simply bring pretrial populations down: Another central goal of pretrial reform must be to eliminate racial bias in decisions about who is detained pretrial and who is allowed to go free. Historically, Black and brown2 defendants have been more likely to be jailed before trial than white defendants. And recent evidence from New Jersey and Kentucky shows that while some reforms have helped reduce pretrial populations, they’ve had little or no impact on reducing racial disparities.
As of 2002 (the last time the government collected this data nationally), about 29% of people in local jails were unconvicted – that is, locked up while awaiting trial or another hearing. Nearly 7 in 10 (69%) of these detainees were people of color, with Black (43%) and Hispanic (19.6%) defendants especially overrepresented compared to their share of the total U.S. population. Since then, pretrial populations have more than doubled in size, and unconvicted defendants now make up about two-thirds (65%) of jail populations nationally. With far more people exposed to the harms of pretrial detention than before, the question of racial justice in the pretrial process is an urgent one – but the lack of national data has made it hard to answer.
While pretrial jail populations have grown to make up almost two-thirds of jail populations nationally, and Black and Hispanic defendants were overrepresented in the 2002 population, no national data have been collected since then to assess how racial disparities may have changed.
So what, exactly, is the state of racial justice in pretrial detention? And how can advocates assess racial justice in their county or state? What data do they need, and where can they find it? This briefing reviews findings from recent studies of racial disparities in pretrial decisions – including both national and more geographically-limited analyses – and then suggests sources for further research to understand and address the problem.
To assess the state of racial justice in pretrial detention since the last national survey was conducted nearly 20 years ago, I reviewed more recent academic literature – studies that utilize other data sources and offer more nuanced analysis.
Overall, the available research suggests that:
In large urban areas, Black felony defendants are over 25% more likely than white defendants to be held pretrial.
Across the country, Black and brown defendants are at least 10-25% more likely than white defendants to be detained pretrial or to have to pay money bail.
Young Black men are about 50% more likely to be detained pretrial than white defendants.
Black and brown defendants receive bail amounts that are twice as high as bail set for white defendants – and they are less likely to be able to afford it.
Even in states that have implemented pretrial reforms, racial disparities persist in pretrial detention.
National data is limited and outdated
Only one publicly-accessible study uses a nationally representative sample to measure pretrial detention status by race: the Survey of Inmates in Local Jails (SILJ), which was last conducted in 2002. Considering that jails and policing practices have changed significantly since 2002, an update to this dataset – now slated for 2021 – is long overdue.
Since 2002, national studies have been limited to felony cases in large urban counties. These studies are based on the Bureau of Justice Statistics’ (BJS) State Court Processing Statistics (SCPS), data which were last collected in 2009. The data include both demographic and case characteristics for each defendant, allowing researchers to control for legally-relevant factors like offense type, number of arrest charges filed, prior criminal record, and whether the defendant had failed to appear in court before. While BJS’ own publications based on this dataset (the Felony Defendants in Large Urban Counties series) do not provide a breakdown of pretrial detention by race or ethnicity, some academic researchers have used it for that purpose. (For a full list of their studies, see the appendix to this article.)
These national studies of felony cases in large counties generally conclude that the direct impact of race on pretrial decisions is weak, but that racial bias acts cumulatively to affect outcomes, and indirectly via factors like ability to pay for bond or a private attorney. McIntyre & Baradaran’s analysis of 1990-2006 SCPS data concludes that Black defendants are over 25% more likely to be held pretrial than white defendants. The most recent SCPS data, from 2009, supports that finding: Even after controlling for age, gender, and a number of conceivably legally-relevant factors (most serious charge, prior arrests, etc.), Dobbie & Yang (2019) find that over half (58%) of the 39 sampled counties had higher rates of pretrial detention for Black defendants than for white defendants. In 5 counties, the unexplained racial gap was over 20%.
More recent, but geographically-limited, studies help fill in the gaps
More recent analyses shed further light on racial justice in pretrial decision-making, even though their samples are not nationally representative. I looked at 16 of these more geographically-limited studies, with subjects ranging from federal drug cases in the Midwest to misdemeanor cases in Harris County (Houston), Texas. In all, they include samples from 11 states spread across the U.S., and major cities including New York City, San Francisco, Philadelphia, and Miami.
Of course, no single estimate of racial disparity in pretrial detention will apply to all counties nationwide. In the studies I reviewed, the racial gap in pretrial detention between Black and white defendants ranges widely, from about 10% to 80% depending on the study and jurisdiction (that is, the county or city).
However, these studies most frequently confirm that unexplained racial disparities continue to plague the pretrial process.3 Throughout the literature, researchers report that rates of pretrial detention and receiving financial conditions of release (i.e. money bail) are consistently higher for Black and Latinx defendants (and often Native American defendants, when they are included in the analysis). Bail bond amounts, too, are consistently higher for Black and brown defendants, even though they are less able to afford money bail. Rates of release on recognizance or other nonfinancial conditions of release, such as pretrial supervision, are likewise lower for Black and brown – versus white – defendants. Furthermore, the studies that included sex and age in their analysis found that young Black males face the greatest disadvantages.
Specifically, these studies report significant racial disparities, such as:
Most of these studies find that Black and brown defendants are 10-25% more likely to be detained pretrial or to receive financial conditions of release.
Median bond amounts, when compared, are often about $10,000 higher for Black defendants compared to white defendants. In at least one study, the median bond set for Black defendants was double the median bond set for white defendants.
The most recent analyses of racial disparities in pretrial detention – assessing the effects of reforms in Kentucky and New Jersey – show that pretrial assessment tools have not reduced these disparities as much as advocates hoped, although they have reduced pretrial detention overall.
Advocates may be able to find data about their local jails
Of course, county or city jail administrators may collect and maintain data on the racial/ethnic composition of their pretrial populations. Advocates in some jurisdictions may be able to request data about their own local pretrial jail populations, which they can compare with the overall local population for a simple measure of racial disparity. Such a comparison, however, will exclude other relevant characteristics (such as seriousness of offense or past failures to appear in court) and won’t identify what stage(s) of pretrial decision-making are affected by race (such as the decision to set a money bail amount, or how high bail was set). Nevertheless, even a crude estimate of racial disparity in local pretrial detention can help advocates draw attention to the issue and raise important questions with decisionmakers.
Next steps for researchers and advocates
Jailing Black and brown pretrial defendants more often than white defendants isn’t just unfair; it also contributes to racial disparities later in the justice process. But in order to solve this problem, local advocates and policymakers need current data about who is held pretrial in their counties and states. And in order to identify broader patterns in pretrial decision-making, we need more data at the national level as well.
Until the Bureau of Justice Statistics updates its Survey of Inmates in Local Jails – which, unfortunately, is not guaranteed to happen on schedule in 2021 due to chronic underfunding – advocates and policymakers must rely on independently-produced local studies. Academic researchers (including those referenced in this briefing) have already developed models for these local studies.
In places where there appears to be little or no data published about racial disparities in the pretrial process, advocates can partner with local academic institutions or ask state Statistical Analysis Centers for assistance. Several large-scale projects led by non-governmental organizations are also actively working to assist local jurisdictions in using their data to inform policy changes that will reduce unnecessary incarceration. For example, the MacArthur Foundation’s national Safety and Justice Challenge supports initiatives in 52 jurisdictions across the U.S. to reduce the misuse and overuse of jails. And Arnold Ventures recently launched the National Partnership for Pretrial Justice, advancing a variety of pretrial justice projects across 35 states. Measures for Justice is developing a broad, publicly-accessible database of county criminal justice data; currently it offers data from 6 states, with data from 14 more states expected in 2020. And of course, communitybail funds across the country have been collecting data as they bail low-income defendants out of jail – no strings attached – and reporting high success rates that underscore just how unnecessary money bail is. These kinds of resources can help local advocates and future researchers find the data they need to measure racial disparities in pretrial justice processes, and work to eliminate them.
See the Appendix for a list of all of the sources reviewed for this briefing, with links and summaries of their findings related to racial disparities in pretrial detention.
Major police departments are arresting fewer people for minor crimes, reports the Wall Street Journal. Statistical studies show a deep, yearslong decline in misdemeanor cases across New York and California and in cities throughout other regions, with arrests of young black men falling dramatically. New York City’s misdemeanor arrest totals have fallen by half since peaking in 2010, with rates of black arrests sinking to their lowest point since 1990. The arrest rate for black men in St. Louis dropped 80 percent from 2005 to 2017, including steep declines in simple assault and drug-related offenses. In Durham, N.C., arrest rates for blacks fell by nearly 50 percent between 2006 and 2016.
Researchers are surprised by the downward misdemeanor trend, which pushes against assumptions about overpolicing in urban areas. Some say the falling arrest rates signal a fundamental shift in crime prevention. The shrinking misdemeanor totals may be evidence that police are pulling back on sweeping quality-of-life enforcement and focusing instead on “hot spots,” neighborhood strips and streets with clusters of gun violence and gang activity. The decline could be driven by technologies like the internet and mobile phones that help to keep social interaction off the streets. The growing decriminalization and legalization of marijuana has contributed. “The enforcement powers of the police are being used far less often,” said Jeremy Travis, former president of John Jay College of Criminal Justice. Scholars led by John Jay collected data from several cities and released reports over the past year. A report by the Public Policy Institute of California found that misdemeanor rates in California declined by about 60 percent between 1989 and 2016. A forthcoming paper by law professors at George Mason University and the University of Georgia found sizable arrest declines in rural Virginia, San Antonio and other places.
Can authorities ever wean themselves from the revenue produced by forcing Americans caught up in the justice system to pay fines and fees that trap them in an endless cycle of debt?
The answer: Only by changing the mindset of a system that now actively encourages courts and law enforcement to “shake down” some of the poorest and most vulnerable people in our communities, according to a former California judge.
“A lot of judges weren’t enforcing fines in the 1960s and 1970s, but that changed in the late 1980s, after very conscious pressure by legislatures on courts to start collecting new fees,” Lisa Foster, co-director of the Fines and Fees Justice Center, and a retired California Superior Court judge, told a conference on “Cash Register Justice” last week at John Jay College.
“There was a massive training done by the National Center for State Courts, to teach judges how to shake people down in their court rooms. If you’re a judge who came up in the 1990s, you came up in that system.
“We’ve got to undo that culture.”
The criminal justice reform community across the political spectrum, and a growing group of government actors, have come to a broad consensus that fees can be gradually eliminated if governments take a more realistic approach, the conference was told.
Mitali Nagrecha, director of the National Criminal Justice Debt Initiative at Harvard Law School, said pressures from legislators and law enforcement on judges to enforce fees and fines that pay for court services are often hard to resist.
Speaking at a conference panel Friday, she said two judges in a state which she declined to name had told her they couldn’t possibly implement changes to the system, which would set fines based on an individual’s ability to pay, “because a man with a gun would call them and ask to have lunch”—meaning the sheriff.
But Nagrecha said a recent study trip to Germany showed that reforms were possible if there was a willingness to rethink a practice and mindset that now pervades the entire U.S. criminal justice system.
“Germany relies completely on people’s testimony (on their ability to pay) in their fining system,” she said. “People fill out a form, they don’t do any document checks. “
“Germany doesn’t just give a flat fee to everyone. The judges seem to get something because they know the system works well, and it keeps their cases moving, and the person pays something that’s proportional to what they can pay.
“It benefits everyone.”
But changing the mindset may be the hardest challenge of all.
“Often authorities look at someone caught in the criminal justice system as a lion looks at a sickly gazelle,” quipped William Maurer, managing attorney of Institute for Justice.
Amir Whitaker, now an attorney with the American Civil Liberties Union in California, confirmed it with an anecdote from his own experience as a youth on probation in New Jersey.
Amir Whitaker. TCR photo.
“My meetings [with a counselor) would start with a question ‘Where’s my money?’” he recalled, noting he was assessed fees for every kind of social service connected with his community supervision.
“But there were no services,” he said.
Dami Animashaun, an attorney with the Civil Rights Corps, said the fees for testing and counseling assessed young people and their families in Arizona’s Maricopa County, for example, amounted to impossible burdens.
Youths charged with possessing even “trace amounts” of marijuana—a felony in Arizona— are can avoid conviction and jail if they agree to a three month testing program, which costs $15 a week, and since you have to prove that you’re clean for at least three months, the costs can end up totaling $1,000 just in order to be released from the program, he said.
“What possible rehabilitative service does this involve?” asked Animashaun, who is part of a time leading a lawsuit against the county over its juvenile fee system.
Nevertheless, the juvenile justice system is moving faster than other components to rethink the practice.
California, Nevada and Washington have eliminated most fees for juveniles, and cities like Madison, Wis., Philadelphia, Memphis, and New Orleans are all considering abolition.
Changes elsewhere in the system itself are often nuanced. While some jurisdictions have contemplated graduated fines based on ability to play, including with payment payments plans, others are exploring the idea of using “community service” as an alternative.
Considering that few jurisdictions ever collect the full amount of fines and fees they assess—with unpaid amounts piling up into the millions—rethinking the system is critical, said Joanna Weiss, co-director of the Fines and Fees Justice Center.
Joanna Weiss. TCR Photo
“When you give people a reasonable way out of the criminal justice system, they’re much more likely to take it,” she said. “People don’t want to have this debt sitting around their necks like a noose, and if we make it less costly and manageable for people to pay, lessen the fee and giving them time to pay it.”
But that also places a burden on cities and counties to rethink their financial structure, Weiss said.
“The justice system is supposed to serve everyone,” she said. “It is a core government function that needs to be funded by everyone.”
Weiss cited a study by Governing Magazine that showed 600 cities across the country get more than 10 percent of their revenue through fines and fees.
e Hon. Lisa FosterSome 200 cities were getting more than 20 percent of their revenue from fines and fees.
But in order to collect the money, law enforcement resources have to be allocated that would otherwise be used to protect public safety, she said.
“Cities are averaging one to two percent of their revenue from fines and fees (but) each additional percentage they get in fines and fees correlated with a 6.1 percent decrease in resolving violent crime,” said Weiss.
“We’re using our criminal justice resources as tax collectors—not to protect public safety. “
TCR writer Dane Stallone contributed to this report. For more information about fines and fees, and innovative practices around the country to rethink them, please click here.
Do tougher immigration policies—including deportations—reduce crime?
The answer is no, according to a study by two University of California researchers, who examined the effect of the Secure Communities program initiated by the Department of Homeland Security in 2008.
Using data from Immigration and Customs Enforcement (ICE) records, obtained from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, the researchers found that a .2 percent increase in the deportation rates had a negligible effect on crime rates.
Our main findings show that increased deportations did not reduce local crime rates,” said the researchers, who published their findings in a discussion paper for the IZA Institute for Labor economics.
“The estimated effect on violent crime is small and not statistically significant,” they wrote “The effect on property crime, while positive and usually significant, is also small.”
The Secure Communities program identified and moved against immigrants who violated immigration laws when local authorities arrested them for any reason, vastly increasing the number of people deported from the US.
Defenders of the program argues that such direct enforcement policy counters the perceived security risk posed by undocumented immigrants.
The researchers, Annie Laurie Hines and Davis Giovanni Peri of the University of California, said their findings also undermined arguments that enforcement-driven deportations increase police efficiency in solving criminal cases, and increase job opportunities for low-skilled workers.See also: Law Enforcement Refusals of ICE Detainers Up 37% Over 5 Years
Leading state corrections chiefs say a new report showing that 45 percent of prison admissions nationwide are driven by violations of parole or probation is forcing them to rethink their approach to community supervision.
The report released Tuesday by the Council of State Governments (CSG) Justice Center represents the first state-by-state analysis of the issue. According to the report, the high numbers of individuals sent back behind bars either for new crimes or simply for breaking supervision rules adds a huge burden for taxpayers and conflicts with the goal of reducing recidivism.
“This has forced us to look at our rules,” said John Wetzel, Secretary of the Pennsylvania Department of Corrections.
Wetzel noted that the CSG report showed Pennsylvania spent over $100 million on tracking parole violators.
”If we need to spend $100 million to ensure that the citizens of Pennsylvania were safe we would do that,” he said in a conference call in advance the report’s release.
“But the reality of it is that often times, these technical parole violations—when they result in incarceration—really lead to further crime and further violations.”
The report, Confined and Costly: How Supervision Violations are Filling Prisons and Burdening Budgets, found that 25 percent of prison admission nationally were the result of technical violations such as failed drug tests or missed curfews.
“No one thinks people should be sent to prison for a missed curfew or faulty paperwork, and yet this report shows these kinds of minor technical violations are contributing significantly to state prison populations,” said Julienne James, director of criminal justice for Arnold Ventures, which provided funding for the analysis.
“This should serve as a wakeup call that our probation and parole systems are not healthy, not functioning as intended, and need to be reformed.
In Tuesday’s conference call, Anne Precythe, director of the Missouri Department of Corrections, said her state plans to implement this month a “behavior matrix” which refines the tools used by community supervision authorities to assess whether a given violation merits a return to prison.
“(The CSG ) report is really going to help us get our story out there.”
In Missouri more than half of prison admissions are due to technical violations, Precythe said.
Taxpayers are footing a huge bill, according to the report, froim a practice that, on any given day, leaves nearly 280,000 people in prison as a result of supervision violations—and costs over $9 billion annually.
For a copy of the report, including a tool that allows numbers to be broken down by state, please click here.
TCR News Intern Brian Demo contributed to this summary.
The number of people in U.S. prisons fell to a nine-year low of just under 1.5 million last year, a 1.3 percent decrease, according to a report released today by the nonprofit Vera Institute of Justice.