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Mass Incarceration and Criminalization

Part 1: Pretrial Detention

Professor Sandra Susan Smith, Tom Shirley, Damarcus Bell, and Isabella Jorgensen

2.3 million people are confined in the United States. Over 1 in 5 of these people have yet to be convicted for the crime(s) for which they are being held. Instead, they are in local jails awaiting trial, often solely because they lack the resources needed to get bailed out. Although interrelated, pretrial detention is distinct from prison incarceration following conviction. Conditions of confinement in jails are considered to be far worse, and the short- and long-term consequences are similarly devastating. Across the country, however, reforms are underway in many jurisdictions, offering promise for a more just future.

This article will form part of a series on mass incarceration and criminalization by first focusing on the inhumane conditions and negative outcomes accrued by detaining so many people in jails pretrial.

In 9 Charts

Longer Read

A - The scale of pretrial detention in the U.S.

In the United States, nearly half a million people are incarcerated without having been convicted of the crimes for which they are being held. This represents the highest rate of pretrial detention in the world. At around 150 people per 100,000 population, the U.S.’s pretrial detention rate is 50% higher than Russia, a distant second.

Pretrial detention is not a new phenomenon, but rates have surged dramatically over the last four decades. Despite significantly lower crime rates than 1970, current rates of pretrial detention are five times higher than they were 50 years ago.

The rate is now so high that the number of people held pretrial is equivalent to the populations of cities as large as Sacramento, Miami, or Atlanta.

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454,279

population
 

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488,800

population
 

500,930

population
 

Given the U.S.’s heavy reliance on pretrial detention, many assume that the system has clear societal benefits. As we discuss in the next chapter, however, pretrial detention’s costs to society far outweigh its benefits.

B - What's so bad about jail?

Although average stays are approximately three weeks, most people are released from pretrial detention on the day of arraignment or within one week. Still, spending any longer than one day substantially worsens individuals’ social, economic, psychological, and penal outcomes in the short- and long-term. Why?

Jails are violent.

Individuals who are held pretrial are highly transigent and are jailed for diverse reasons - from low-level, non-violent offenses, like liquor law violations and disorderly conduct, to murder. This makes jails violent and unpredictable, especially so for already vulnerable populations. For instance, younger people being held pretrial, those who have been previously abused, and people with mental illness are all more likely to face violent victimization.

 

“The [female] sheriff called and all the [male officers] came and beat the woman. I actually watched that. I don’t even know how she didn’t die. The [girl] hadn’t done nothing. The lady--the sheriff--she was very nasty, they say, and she had been taunting the [girl] all day. That’s how it ended, with [the girl] ending up being stomped and all kinds of things by male officers.”

-Chantel, detained for three weeks before being released on her own recognizance

Similarly, a 2011 national survey of incarcerated people conducted by the Bureau of Justice Statistics found that non-heterosexual, psychologically-distressed, and transgender people are at increased risk of sexual victimization - by both other people who are detained and by correctional staff.

The violence of jail incarceration is compounded by living conditions that are unsafe, unsanitary, and lacking adequate space.

The pretrial detention rate has increased more than 470 percent over the last four decades. This dramatic swelling of jail populations has been driven by a number of factors, including a greater reliance on cash bail and corresponding decrease in the use of releases without conditions. In turn, increasing jail populations have led to overcrowding and related ills.

The average jail cell for two people is just 6% the size of a typical apartment. In many cases, however, people are housed not in jail cells but in dormitories where detainees are packed like canned sardines, with even less space and privacy.

Jails are overcrowded.

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or

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Source: California Department of Corrections

Jails are unsanitary.
 

“Well, as I mentioned before, they kept the cells freezing cold and they were filthy. There were feces on the walls. They never cleaned them. They were unsanitary. And they were always cold. And we didn’t have adequate clothing, so we were always freezing. And they’d leave us in there for hours at a time. We were just treated like cattle essentially. Like barnyard animals. The deputies were power hungry, and they didn’t care.
They really didn’t care.”


 

-David, detained for five days before pretrial release.

In addition to overly cramped quarters, poor ventilation and rationed access to soap, water, and clean laundry make jails fertile breeding grounds for the spread of infectious disease.

For example, up to 25% of people who are detained may have latent tuberculosis infection. When combined with HIV rates, which are at least five times higher than the general population, this can lead to active infections which spread rapidly in confined, unsanitary conditions. 

Because most are held for a short period of time, jails tend not to screen for infectious diseases. Screening, however, would yield important long-term benefits. For instance, a study in Atlanta jails was able to diagnose 52 people with HIV, at half the typical cost, greatly increasing their longer term health prospects and public health overall.

The travesty of disgusting jail conditions has been brought into sharp relief by the COVID-19 pandemic. Despite being prioritized for the vaccine, by April 2021 less than half of U.S. prison guards had taken a single dose.

Given how easily the virus transmits in cramped conditions and the fact many people who are incarcerated have existing health conditions, failure to vaccinate guards and detainees highlights a disregard for health and safety.

Jails lack adequate food and healthcare.

Across the country, individuals detained in jails attest to the terrible quality of jail food. Some detained in Gordon County, GA have resorted to eating toothpaste and toilet paper to sustain themselves. In Montgomery County, NY, they have attributed incidents of violence to minuscule portion sizes. In places like Maricopa County, AZ and Morgan County, AL, sheriffs have legally pocketed excess public funds after spending, on average, less than $.15 per meal. Many have equated jail food with poison. 

“I just couldn’t eat the food that they were providing there. It wasn’t very high quality and it wasn’t enough. I mean, the first time I was in Santa Rita I lost 40 pounds because I couldn’t eat the food, I couldn’t hold it down.”

-Neil, detained for two months before pretrial release

58¢

average cost

per meal

Calories? No data published

Jails also provide health care and other essential social services that are meager at best, a distressing reality given that those held pretrial are a heterogeneous population disproportionately beset with a number of often untreated chronic health conditions, mental health illnesses, and substance abuse problems.

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Morgan County Jail, Alabama

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Sixty-four percent of people detained in jails have a history of mental health problems or are currently under psychological distress, yet less than a third of these individuals are receiving treatment from a trained professional in the form of medication, counseling, or therapy.

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The harsh conditions of pretrial detention also inflict irreparable damage to individuals’ physical and psychological well-being. Studies have shown that just four weeks of eating a high-fat, high-calorie diet like that served in jails leads to increased cholesterol and risk of heart disease over one’s lifetime. Further, the trauma borne by entry shock, ruptured social ties, insufficient programming to fill idle time, and the struggle to maintain stability amid violence and chaos can make pretrial detention a mental health crisis in and of itself.

 

Such bodily deterioration has long-lasting health impacts. Many individuals in jail incur cases of post-traumatic stress syndrome, tuberculosis, and other infectious diseases, yet go undiagnosed and untreated. Given the inadequacy of health services during confinement as well as the relative absence of referrals and follow-up care, pretrial detention wreaks deleterious health consequences not only for people who are incarcerated, but the communities they return to as well.

Jails kill.

Even as rates of pretrial detention have declined modestly since 2008, the number of people who die in jail has consistently increased, both in absolute terms and as a proportion of the broader population. 


Heart disease comprises the majority of all illness-related deaths in U.S. jails, a rate more than twice as high as the non-incarcerated population.

The suicide rate has increased by more than 50% since 2008 and is the leading cause of mortality, accounting for more than a third of all jail deaths. Many argue that such casualties are highly preventableA report from the Department of Justice has noted that jails have a propensity to "enhance suicidal behavior: fear of the unknown, distrust of an authoritarian environment, perceived lack of control over the future, isolation from family and significant others, shame of incarceration, and perceived dehumanizing aspects of incarceration.” Yet, 69% of jails either do not provide suicide prevention training or do so on less than an annual basis.

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Given the numerous, compounding harms of pretrial detention, even short jail stays can turn into death sentences.  More than 40% of all jail deaths occur within the first week of incarceration while awaiting their day in court. 

 

C - What are the long-term consequences of pretrial detention?

 

A growing body of research has identified a number of long-term, negative consequences for individuals who have been detained pretrial as well as their families.

Pretrial detention affects case outcomes and diminishes employment prospects.

All things equal, pretrial detention increases the likelihood of conviction on current charges and leads to more severe sentences with conviction. Those detained are 18 percentage points more likely to be convicted than those released pretrial. This is primarily mediated by the impact that being detained has on the likelihood of being influenced to plead guilty.

 

Pretrial detention also significantly and substantially erodes employment prospects, wages, and annual earnings, and increases the burden of legal financial obligations. Those who are detained have a roughly 12 percentage point reduction in the chance of being employed three years after their bail hearing. Further, income benefits decline as the people who are detained are unable to access unemployment insurance and other benefits that they are entitled to.

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Pretrial detention is bad for public safety.

Finally, pretrial detention has been found to increase the likelihood of future criminal legal system involvement. Studies in both Houston and Harris County, Texas further demonstrate that pretrial detention increases the likelihood of continued encounters with law enforcement.

 

In Harris County, Heaton, Mayson, and Stevenson used detailed data on hundreds of thousands of resolved misdemeanor cases to measure the effects of pretrial detention on case outcomes and future crime. They found that detained defendants were more likely to commit future crimes. Specifically, detention increased the share of defendants charged with new misdemeanors by 9.7% at 18-months post-hearing; it also increased the likelihood of any future felony charges by 32.2%. With a quasi-experimental analysis, they confirmed that differences likely resulted specifically from pretrial detention.

 

*DC: Over 90% of arrestees are released without a financial bond.

**Philadelphia: 90% of people facing misdemeanor charges were released without bail.

Sources: Stanford Law Review    LJAF 

Many jurisdictions that have implemented reforms that detain fewer people pretrial have observed no adverse public safety impact. 

Pretrial detention negatively impacts families

Families and loved ones are often left out of discussions about the deleterious effects of pretrial detention. Evidence suggests that detention causes income effects as well as mental health burdens, including anxiety and PTSD. A concern that disproportionately impacts women in the current system is the involvement of Child Protective Services, whose interventions can  pass the negative consequences of system-involvement on to the next generation.

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Source: Who Pays?

D - Disparate impact on Black and Latinx communities

The trauma and negative long-term consequences of pretrial detention are not felt equally by communities in America. In 2002, Black and Latinx people represented nearly two-thirds of those held pretrial, despite comprising around a quarter of the U.S. population. No national data have been collected since then to assess how racial disparities may have changed.

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The majority of defendants are assessed bail. Roughly 4% are denied bail and 24% are released without a financial obligation. Thirty-eight percent, however, are assessed bail and released after posting a bond.

 

Thirty-four percent are detained pretrial because they cannot afford to make bail because bail is often many times individuals’ annual salary.

 

For many individuals, bail assessments as low as $500 would be too high. This means that the cash bail system essentially discriminates against low-income people.

To make matters worse, Black and Latinx defendants, who are disproportionately low-income, are assessed, on average, higher bail amounts than their white counterparts. 

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+35%

higher bail for African-American men

+19%

higher bail for Latinx

men

Sources: AER   SSRN

E - Financial costs associated with pretrial detention

Even if the pretrial system cost nothing to operate, because it is an inhumane system that is largely ineffective at improving public safety, its cost to society at-large would still far outweigh its benefits. However, the pretrial detention system is not free to operate. Researchers estimate that the core costs of the system are near $14 billion per year. This is a much higher set of expenditures than many other government departments critical to the health and well-being of American society.

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Repurposing this money could more than double the EPA budget, quadruple services provided by the Substance Abuse and Mental Health Services Administration, or provide Medicaid to four million uninsured Americans.

The full societal cost, however, is almost certainly much higher than $14B. When considering measurable benefits and costs of relying on pretrial detention, researchers estimate a net benefit to society of $55,143 to $99,125 for each defendant released.

F - Bail reform efforts

There are an increasing number of attempts to reform bail policy. This section uses research conducted by Isabella Jorgensen for Professor Sandra Susan Smith. As it is the first attempt to build such a resource it is not intended to be entirely comprehensive. The complexity and lack of transparency found during this research is, in fact, a key finding. 

There are many different actors who, in theory, can enact change using various levers. This research breaks reforms in to the following six categories, although there is considerable overlap and variation even within the categories of this framework.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The chart below gives a timeline for five of these types. This shows that overall there is a trend of increasing reforms. Detailed information can be obtained by clicking on a dot. Using the filter in the top left allows the selection of one state.

Hover and click on dots for more information

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Source: Professor Smith and Isabella Jorgensen Research

The sixth type of reform is risk assessments. These are more complex to place on a timeline but the research found many examples of this approach. Colorado, Virginia, and Washington D.C. have created  their own risk assessment tools. Others have adopted already established tools. The Public  Safety Assessment (PSA) is one of the most widely used risk assessment instruments; it has been implemented state-wide in four states and is being used in communities in at least 15 other states.

The view below shows risk assessment information but you can change the settings to view all the reforms shown above in various ways

Hover and click on dots for more information

Source: Professor Smith and Isabella Jorgensen Research

All this variation leads to a highly mixed picture at the state level. Although not an exact science, the map below groups states into broad categories to demonstrate this variation - from no reforms to a significant state-wide effort.

Source: Professor Smith and Isabella Jorgensen Research

Assessing the outcomes of these reforms is challenging at this stage. Few efforts have a dedicated impact evaluation built into the process. However there are growing concerns that these efforts may be leading to unintended consequences. Often the alternative to cash bail can involve high levels of surveillance or new costs, such as for electronic tags, causing the same sorts of financial spirals and continued, detrimental contact with the legal system. Some reforms are also threatened by efforts to roll them back.

It is crucial that jurisdictions continue to take evidence-informed steps to change current systems so that low-income people and people of color are no longer punished because they cannot afford monetary bail.