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May 31, 2011

"The Right Way to Shrink Prisons"

The title of this post is the headline of this notable new New York Times op-ed authored by Shima Baradaran, who is a BYU law prof and chairwoman of the ABA's Pretrial Release Task Force.  Here are excerpts:

Last week the Supreme Court ordered California to reduce its prison population after finding that the state’s penal system was so overcrowded that it constituted cruel and unusual punishment.  What the court didn’t do, however, was provide any guidance about how to do it, giving rise to fears of violent convicts being set free and increasing crime rates.

Rather than seek major criminal justice reforms to reduce the prisoner numbers, including scrapping California’s harsh “three strikes” sentencing laws, Gov. Jerry Brown has proposed simply moving the surplus state prisoners to county jails. This does nothing to reduce California’s disproportionately high incarceration rates and could just transfer the overcrowding to local jails.

Fortunately, there is a more lasting solution to overcrowding, one that gets to the heart of exploding inmate populations nationwide: reform the rules governing pretrial detention, in part by using formulas to help judges better determine which defendants are unlikely to commit crimes while on bail.  Doing so not only would make the system more fair, but also would significantly reduce the number of people who are unnecessarily jailed and even reduce crime rates.

Every year America spends close to $66 billion to keep people behind bars. But almost 500,000 of the 2.3 million prisoners aren’t convicts; rather, they are accused individuals awaiting trial.  While some defendants are able to pay their bail and go free, most cannot, because many judges, lacking firm insight into what types of prisoners are too dangerous to release, set high bail amounts knowing the accused can’t afford them.  Though some of these defendants will eventually be found not guilty and go free, keeping them incarcerated before their trials creates a burden on the prison system.

What’s more, detention begets more detention.  Defendants detained before trial are more likely to be convicted if they go to trial, more likely to receive prison sentences rather than probation when sentenced, and, given their weak bargaining power with prosecutors while locked up, are more likely to have longer sentences....

The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.

For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail.  On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.... [O]ur models indicate that such guidelines could safely lead to the release of up to 25 percent more defendants — and a significant reduction in prison costs and crime rates.

Given eye-popping local, state and federal deficits, it’s unlikely that California will be the only state to face the tough choices involved in reducing its prison population.  With the right data on pretrial defendants, though, judges can help make that task a lot easier.

May 31, 2011 at 10:57 AM | Permalink


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"What’s more, detention begets more detention. Defendants detained before trial are more likely to be convicted if they go to trial, more likely to receive prison sentences rather than probation when sentenced, and, given their weak bargaining power with prosecutors while locked up, are more likely to have longer sentences."

"Begets" implies causation, but none of the correlations cited means that the direction of causation is the one asserted here. These correlations are just as consistent with a hypothesis that the judges are correctly deciding which defendants to detain pretrial.

Posted by: Kent Scheidegger | May 31, 2011 6:47:25 PM

This op-ed is brilliant because it describes a way to begin addressing our nation's incarceration epidemic at its roots. By requiring unreasonable and arbitrary bail, our criminal justice system at both the state and federal levels creates a massive group of defendants that everyone knows has been deprived a realistic ability to establish the truth and fight their cases.

Such defendants are screwed and they know it, the prosecutors know it, the judges know it, the prison guards know it. They appear in court in prison clothes. They can't hire a good lawyer. They can't collect facts. They can't collect evidence about past misconduct by the arresting officers. They can't do internet research. They can't round up helpful witnesses. They can't meet in confidence with their lawyers. With the deck so stacked against them, of course they accept a plea deal, almost regardless of their guilt or innocence. It's simply the rational choice.

If we were to take away the ability of courts to impose unreasonable bail, conviction rates would plummet. Those who wish to see the incarceration epidemic come to an end should take heed of this idea and begin to focus on the imposition of unreasonable and arbitrary bail requirements that violates defendants' rights under our constitution. And counties with excessive bail schedules and excessive statistics when it comes to imposing bail should have to defend those schedules and patterns in court.

Posted by: James | Jun 1, 2011 3:13:54 AM

I hate to be biased. However, female, feminist, lawyer, top of class (meaning most indoctrinated), worked for the defense, worst, endorsed by the ABA, all amount to zero credibility, and total pro-criminal, lawyer rent seeking bias. The intellectual output has the refutable presumption of being garbage. On the other hand, was an immigrant so still a human being rather than a soulless feminist robot, not from the Ivy League, but from a patriotic school. Very good looking and worth a listen.

Here is a prayer for her. Get carjacked, and pistol whipped for not moving fast enough. Come back with your suggestions. They would have 100 times the credibility. Quit that awful professional society. Every member is an execrable traitor to the nation. Work briefly for the prosecution, outside of a feminist criminal division.

She is proposing an unauthorized ghoulish human experiment, and is completely irresponsible. She is also fully oblivious to her wrongfulness. She likely has a morally superior feeling about her work, when it is destructive, morally reprehensible, and a huge mistake.

Posted by: Supremacy Claus | Jun 1, 2011 4:06:32 AM

Jsames: There are a bunch of mentally ill people awaiting trial with bails of $1. Many are from wealthy families. No one is posting bail for months. Do you think something might be going on? Do you think someone is being unfair. Should the judge lower the bail to 25 cents? Or do you think, everyone has decided jail is the best place for this person?

Posted by: Supremacy Claus | Jun 1, 2011 4:10:55 AM

Here are illustrations of how the dropping is a myth, a product of police not making arrests or reporting crimes, covering up crime to prevent lawyer politicians from yelling at them and scapegoating the police for their pro-crime policies.



Minority youths made bastard by the war on productive males by the feminists lawyer grow up without morals or restraint. These organized crime organizations go on a rampage, committing hundreds if not thousands of crimes in a couple of days. Perhaps a dozen are arrested. The count is 12 crimes not 1200 crimes that actually took place. The police cannot arrest more because 1) they do not want to provoke thes gangs anymore; 2) they do not want to be sued by the feminist lawyer; 3) there is no point since the feminist pro-criminal judge will immediately release them.

The sole valid measure of crime is the household survey of victimization. The Obama administration has stopped doing the yearly survey to improve its methods, where no improvement of the best was necessary. Its only problem was showing a 6 fold black victimization rate beset by the large number of fatherless offspring in its community.

Posted by: Supremacy Claus | Jun 1, 2011 7:06:54 AM

if author wants to be an experimenter, she should have chose science. years ago, a simple system was set up - justice system. a simple concept - ignorance of law is no excuse was established. and a simple right was provided - bail. and bail included its own protections - non excessive. and judges were subject to amercement, even censure, for setting excessive bail. and excessive bail challenge via habeas corpus was guaranteed too. all above amounted to due process. and so what happened. time and time again, judges punished accuseds with excessive bail. and time and time again, defense lawyers failed to challenge the bail, failed to hold judges accountable. so, some brainiac, instead of strenghthening the amercement of judges, and hold the judges feet to the fire, decided to usurp bail altogether, and insert release on recognizance. when law goes from direct simple black/white to choices - it does one and only one thing - it creates complexity, and complexity creates more need for counsel, creates more cost, creates more profit to lawyers. so our simple justice system is now a maze that the sherpa's can't even guide us through. and when the sherpa's fail, it then begets even more work and profit for the lawyers. entire system needs complete reset. an accused should be able on his/her own to defend himself/herself without being mandated to have a sherpa. any system of justice that requires a sherpa is not a real system of justice. back to issue at hand - usurping the 8th amendment/judiciary act of 1789 has benefit only one party - lawyers. and by the way - jails have higher pretrial accuseds for this main reason (and its not bail amounts) - judges via bail reform act of 1984, can now "detain" accuseds prior to trial. bra 1966 usurped bail by allowing ror, but bra 1984, violated the constitution by allowing judges the discretion to detain accuseds prior to trial. ps - lawyer brotherhood sucks, they are greedy and self serving, and look other way especially when the brotherhood as a whole benefits from unconstitutionality. when unconstitutionality actually benefits the brotherhood - the brotherhood does nothing to correct it.

Posted by: concernedcit | Jun 1, 2011 7:10:32 AM

shima - epitome of arrogance/ignorance/attemptedcleverness/unnecessaryexperimentation. all you lawyers must be so proud of the products (such as shima) that your industry is producing. back to the future - 1789, that is of course, if you are truly in search of justice.

Posted by: concernedcit | Jun 1, 2011 7:16:24 AM

There is an oriental concept of 'so', meaning specific, and 'betsu', meaning general. Our fear mongering politicians site a specific incident for a general problem, and miss the entire point. "More law and order", has grown our prisons over 400% since 1980. (General population has grown by 20% over the same period.) As laid out in my book, 'Letters From the American Gulag', it isn't just the convicted, it's the ten or so people directly affected around them, also. Our laws and sentencing no longer fit the crimes. I am afraid for our country. We are building a 'Siberia' every bit as lethal as the one the Soviet Union built under Stalin, one 'victory' for the prosecution at a time. We are creating an underclass of citizen in this country devoid of any vested interest in their community, and sending us down a road to fiscal ruin.

Posted by: John Clean | Jun 20, 2011 3:53:54 PM

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