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June 5, 2018

"Open Roads and Overflowing Jails: Addressing High Rates of Rural Pretrial Incarceration"

The title of this post is the title of this new report authored by Marc Levin and Michael Haugen. Here is its executive summary:

The axiom that a person is considered innocent of a criminal act until he or she has been proven guilty is a bedrock principle of the American criminal justice system.  Yet in many jurisdictions, it appears to have been forgotten. The pretrial population of defendants has significantly increased — particularly in rural areas of the country. Jails in smaller jurisdictions are responsible for an outsized share of jail population growth.  Indeed, from 1970 to 2014, jail populations grew by almost sevenfold in small counties but only threefold in large counties.

This paper explores why this growth may have occurred and makes numerous recommendations to reduce pretrial populations, particularly in rural America.  The first place to start is by reducing the number of offenses carrying the potential for arrest and jail time — the overcriminalization of our society must be reversed.  The next step is to restore our historical commitment to individual liberty and the presumption of innocence by following these five guiding principles of pretrial justice policy:

•  There should be a presumption of pretrial release without conditions or cash bond, grounded in the American maxim that people are innocent until proven guilty.

•  Conditions of release, if any, should be the least restrictive to ensure public safety and appearance at trial.

•  Courts — after due process — should have the authority to deny bail in the most serious cases involving highly dangerous defendants after determining that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably protect public safety and ensure re-appearance.

•  The burden should be on the state to prove the need for conditions of release or denial of bond in an adversarial proceeding where the accused is present.

•  Individual judicial consideration should be required for each accused.

For a host of reasons, ranging from limited resources to dispersed populations, addressing pretrial incarceration in rural areas is a particularly complex undertaking.  Also, there are many moving parts to implementing changes in a deliberate manner that produce sustainable results without unintended consequences.  Ultimately, as rural communities across the country take many different paths to addressing the meteoric rise in rural pretrial incarceration over the last few decades, they must not lose sight of the destination: a constitutional system that produces greater public safety with less collateral damage.

June 5, 2018 at 05:55 PM | Permalink

Comments

I am interested in statistics of the number of people being held as incompetent to stand trial, even for trivial offenses, how long they stay, what is the outcome of the competency hearing, when finally held, the validity of the competency determination, and the comparison to the time held compared to the maximum after a guilty plea. Then I am interested in the real motivation for what is officially a mitigating factor, but one that makes people stay far past their maximums, and turns out to be quite detrimental. As Joe might then ask, on the other hand, are these extended stays actually a benefit to the person because they are getting treatment, and markedly improving from the structure of the prison?

Is this abuse of the criminal's rights or an actual benefit, and life saving from the consequences of addiction and psychosis?

Posted by: David Behar | Jun 5, 2018 6:27:57 PM

"Courts — after due process — should have the authority to deny bail in the most serious cases involving highly dangerous defendants after determining that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably protect public safety and ensure re-appearance."

My state has this on the books and it never happens. When county income is at stake everybody becomes dangerous. People forget that most of these local judges are elected and I can't think of a local judge who ever got elected on the platform that they will set most people free. The bail bond people don't want to set people free, the prosecutors don't want to set people free, the jailers don't want to set people free, and the country doesn't want to get set people free. Heck even the local newspapers that still exist don't want to set people free because what will they put in their "Jail Log" feature in the paper?

"There should be a presumption of pretrial release without conditions or cash bond, grounded in the American maxim that people are innocent until proven guilty."

Thanks for the laugh.

Posted by: Daniel | Jun 5, 2018 6:31:02 PM

Without having read the actual article, the electoral incentive isapso the first thing that came to my mind. From a purely self-interest perspective, I don't see any incentive for an elected judge to grant pretrial release. It will not takes one person committing another crime while on release for the local papers (then blogs, then more blogs, then national media) to highlight that story, and for everyone to point at the judge as being the person responsible for 'setting the criminal free.' you get 100 pretrial releases 'right,' and who cares, you get one 'wrong' and you've brought the outrage machine on you. Better to just play it safe and hold them all till trial.

I would think the same problem is at play with members on parole boards. It only takes one person on parole committing a violent crime to have your career possibly subject to internet justice. Who wants that risk, so err on the side of everyone stays locked up.

Posted by: Anonuser879 | Jun 5, 2018 6:51:58 PM

The argument against cash bonds ignores the historical reasons for it which are still valid. Some defendants on bond are not going to show up for trial. We may want to pretend that the risk of flight is negligible, but that's just not the case. Unfortunately, it is hard to accurately predict flight risk for an individual defendant.

In theory, based on a rational behavior model, there is a correlation between the seriousness of the charge and the likelihood of flight. That theory is often used to justify higher bonds for serious offenses. While the rational behavior model makes it seem like bonds are related to risk, an honest assessment would reveal something else.

The issue for bonds is not the disincentive to flee, but rather the incentive for bonding companies to assist in finding the defendant. Unlike the defendant who may not appreciate how much time he will get if he goes to trial, the bonding company works on a cold and ruthless business model. When an offender goes missing, they face a relatively certain loss if they are unable to find the defendant quickly. How much to spend to find the defendant depends on how much the company will have to pay if they don't find the defendant. Having a large bond on a serious case (one in which the State is especially concerned about what the defendant might do while evading law enforcement) means that the bonding company will make every reasonable effort to find the missing defendant and return him to custody.

Moving away from cash bonds means that more defendants who abscond will not be found because there will not be any bond recovery company looking for them. Particularly in rural counties located on the interstates, there are a lot of non-local defendants. If a defendant fails to show, any arrest warrant is going to go to the bottom of the stack in their home counties, and the only people who are realistically going to try to find them will be a bond recovery company.

Posted by: tmm | Jun 6, 2018 6:17:38 PM

The average time between arrest and trial, with imprisonment awaiting trial, in California is 266 days.

Posted by: David Behar | Jun 7, 2018 12:08:59 AM

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