New Shoes And New Ideas For Local Justice Systems

Marc Levin Policy Director, Right on Crime
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Every week in the United States some 220,000 adults are booked into county jails for everything from murder to marijuana and kidnapping to shoplifting. Yet, on January 1 in Framingham, Massachusetts, one offender become a story rather than a statistic. When Jason Duval couldn’t post bail, Judge Douglas Stoddard took him up on his creative offer of leaving with the court his new Nike Air Jordan sneakers he had received as a Christmas gift in exchange for his release. This case reveals how sought after this footwear is, but it tells us even more about what’s wrong with the pretrial justice system.

First, consider that Mr. Duval was set to go to jail even after misdemeanor drug charges were dismissed simply because he could not afford to pay $450 in court fees. Of course, had he gone to jail, taxpayers could have been out not only the $450, which he would not have earned in jail, but also the cost of incarceration, which is about $80 a day in Middlesex County, Massachusetts. Similarly, in Texas and other states, one can discharge an unpaid speeding ticket and other fines by going to county jail at a rate of credit of $50 to $100 a day. In this scenario, taxpayers get hit twice, because the fine is wiped away and they must shoulder the jail costs, which are the largest item in many county budgets.

For a solution to this conundrum, policymakers can look to juvenile justice legislation passed in Texas in 2013. This bill allows youths to discharge fines by performing community service. A similar approach could work for indigent adults who face jail time due to an inability to pay fines and court costs. Instead of being served “three hots and a cot” in jail, these individuals could be cleaning up our communities.

However, we must also confront the broader issue, which is that too many other criteria besides public safety are being used to determine whether individuals who have yet to be convicted of a crime must remain in jail in the weeks and months leading up to their trial date. About 20 percent of the nation’s more than 2 million prisoners are detained in local jails pending trial. To be sure, those defendants who pose a high risk of committing violent crimes before their trial date should be held in jail. Fortunately, actuarial risk assessments are better than ever before in identifying which defendants are a risk to public safety. Such assessments consider common-sense factors such as a defendant’s prior record and whether the defendant has any prior failures to appear in court.

In July 2013, all counties in Kentucky began using such an instrument, which takes five minutes to administer, to guide decisions about who should be released prior to trial. Since then, more low-risk defendants are being released without financial conditions and, at the same time, the rate at which those released prior to trial are charged with new offense and fail to show up has declined.

In addition to making the threshold in-or-out decisions based on public safety before considering conditions such as money bail, local jurisdictions should also give police more tools to divert appropriate individuals from jail all together. It was not just liberals, but many conservatives like talk show host Sean Hannity who argued that Eric Garner never should have been arrested for selling loose cigarettes. If this should even be a crime, the law could allow police to issue a citation instead of making an arrest.

Getting pretrial justice right does more than save taxpayers money and ensure precious jail beds are focused on those who threaten public safety. Consider that one study found that pretrial detention leads to job loss in half to two-thirds of cases, which increases the risk of re-offense. Moreover, a comparable defendant who is detained prior to trial is three to four times more likely to ultimately be sentenced to jail or prison. With those kind of numbers, wouldn’t any of us give the shoes off our feet to stay out of the slammer?

Marc Levin is policy director at Right on Crime and the director of the Center for Effective Justice at the Texas Public Policy Foundation