By Kaitlin Kall, The Center on Sentencing and Corrections program at the Vera Institute of Justice

Introduction

There are more than 3,200 jails across the United States. Unlike prisons, which are operated on the State or Federal level, the majority of jails are run by counties or cities; most operate at least one facility. While state and federal laws certainly impact jail population trends, local policies and procedures greatly influence how many enter a county’s jail and how long they stay. Fortunately, this means that jurisdictions can make changes to their criminal justice systems and reduce the overuse of their jails without waiting for legislative or state-level reforms.

This brief highlights six points along the trajectory of a criminal case that effect jail admissions and length of stay: arrest, charge, pretrial release, case processing, disposition/sentencing and post-disposition. At each of these decision points, law enforcement, district attorneys’ and public defenders’ offices, judges, jail administrators, probation departments and other criminal justice personnel can alter policy and practices in ways that reduce their community’s overreliance on jail. Below we describe each decision point along with examples of jurisdictions that have undertaken meaningful reforms.

Entry Point: Arrest

Arrest is the entry point into the criminal justice system. After an encounter, a law enforcement officer must make the decision whether to make an arrest, issue a summons, refer to local services or a diversion program, or give a verbal warning. Some jurisdictions have expanded the types of offenses that can be subject to a summons rather than an arrest. Many police departments have partnered with community services in order to expand their response options.

• Intended to improve both urban quality of life and outcomes for routine offenders, Seattle (WA) established the Law Enforcement-Assisted Diversion (LEAD) program. Instead of booking an individual suspected of a drug and/or prostitution crime into jail, officers can offer him or her the opportunity to be diverted to community-based wrap-around services which are overseen by a case-manager. Officers are also empowered to refer residents in need of services to a case-manager via an informal interaction called a “social contact,” avoiding an arrest altogether. Two recent evaluations of the program have shown positive results; LEAD participants were found to have spent 39 fewer days in jail than a control group and had 87% lower odds of being incarcerated in prison at least once.¹

• Under the Bexar County Jail Diversion Program, law enforcement officers in the San Antonio, TX area have multiple means for responding to citizens with mental illness. Officers are encouraged, for example, to take individuals appearing to have mental illness to Crisis Care Center (CCC), a ten bed drop-in facility for those in crisis, instead of arresting them. Patients can stay at the facility up to twenty-three hours and are re-started on medication and provided physical and mental health care. If staff are not able to stabilize the individual, he can be transferred to a longer-term treatment facility rather than to jail. The county estimates the CCC alone saves $5 million annually due to decreased jail usage.

Pressing Charges

Prosecutors make the decision to formally charge a person with a crime and decide which charges to file. Prosecutors hold tremendous discretion in this process, which means that if available, District Attorneys can take advantage of prosecutorial alternatives such as pre- and post-charge diversion.

• Known as Early Intervention, Milwaukee County District Attorney’s Office operates two prosecutorial diversion programs which assign offenders to six months of community-based treatment and programming in lieu of pretrial detention and typical criminal justice case processing². The Diversion program offers lower-risk individuals (as determined by an evidence-based screening tool) diversion before charges are officially filed. Those who successfully meet the conditions of their release will not be subject to a criminal charge on their records. Milwaukee’s Deferred Prosecution Agreement Program (DPA) serves those measured to be at medium to high-risk of re-offense. Participants enter a guilty plea and sign an agreement, but the judgment of conviction is deferred upon successful completion.

• In 2011, the city of San Francisco’s District Attorney established ten Neighborhood Courts, which offer true alternatives to prosecution³. Instead of filing charges, prosecutors can refer individuals facing misdemeanor charges to these “courts”, which are staffed by community volunteers trained in restorative justice practices. Defendants and volunteers discuss harm done to the community and defendants may be given community service or asked to pay restitution. If the participant is compliant, prosecutors will dismiss the case. Showing great success, the neighborhood court model is being replicated in Los Angeles and Yolo County, CA.

Pretrial Release

Pretrial release involves a series of decisions affecting the release of a defendant before final disposition, including whether to release, conditions of release such as financial bail or pretrial supervision, and the response to violations of pretrial supervision. In some jurisdictions the best practice is considered to be a pretrial services agency assessing defendants’ risk levels, which than informs these decisions. It is typically a judicial officer who makes the pretrial release and bail decision. However, in courts where a bond schedule is in place, cash bail is set by charge, and the defendant’s ability or inability to pay the bond determines whether or not he must stay in in jail pending trial.

• Mesa County (CO) undertook reforms to improve its pretrial release process by implementing an evidence-based pretrial risk assessment tool, moving away from cash bail, and increasing the use of release on recognizance and other non-financial conditions of release. Judges, who now have more information from which to make their pretrial release decisions, went from releasing 30% of defendants on their own recognizance (that is, without paying a bond) in 2011 to releasing 60% of defendants on their own recognizance in 2015. These reforms saved the county 95,630 jail bed days in 2012 alone. The jail’s pretrial population dropped 27% from June 2013 to November 2014, while maintaining impressive safety and appearance rates.

• Research shows that jurisdictions that implement court date reminder systems can expect to reduce failure-to-appear (FTA) rates, which often serve as the motivation for detaining people pretrial. After establishing the Court Appearance Notification System in 2006, Multnomah County, OR realized a 37% reduction in FTAs using and automated calling system⁴. This resulted in a net 10 cost-avoidance to the criminal justice system of as much as $264,000 in just six months of operation and substantially reduced minority over-representation in failure to appear rates⁵.

Case Processing

Case processing refers to the series of decisions that get made along the trajectory of the case, from arraignment to disposition and sentencing, including the time standards for each, docketing options and specialty courts.

• Within just a year of being built in 2002, Bernalillo County’s (NM) jail become overcrowded and continued to remain so for the next ten years. In 2012, consultants identified that a major driver was long case processing times for felony defendants. The Second Judicial Court undertook major efforts to speed up case processing times for this population, which included clearing a backlog of existing cases. The courts also adopted a differentiated case management strategy, which places cases on differentiated tracks (expedited, standard, or complex) based on their estimated complexity. Impacts of these and other reforms were immediate; the jail population went from 2,667 in 2012 to 1,099 - a 40% decrease in just three years, achieving the lowest population since opening⁶.

• Prior to reforms, a defendant’s misdemeanor and felony charges in Orange County Superior Court (CA) were processed in separate courts, increasing the number of mandatory court dates and associated costs⁷. Intending to reduce court dates and court backlogs and FTA rates, the Court implemented a system in which a defendant’s cases are “packaged” and heard by one judge. This new system was found to reduce the expenditure of court resources and improved rates of probationer success. 

Sentencing and Post-Conviction

After disposition - when a judge or jury has found a defendant guilty or, most commonly, once a plea is accepted - the judge determines a sentence, which may involve incarceration, community supervision or other alternatives. The post-conviction phase includes time served in prison, jail and/or under correctional supervision in the community, as well as violations of supervision.

• The Allegheny County (PA) Mental Health Court (MHC) offers justice alternatives for offenders diagnosed with a mental health disorder. In addition to offering pre-trial diversion, MHC serves as an alternative-to-jail program. Instead of being sentenced to jail or prison, MHC participants are placed on probation and referred to community based treatment and other support such as housing services. An evaluation by RAND Corporation found that participation in MHC significantly increased access to mental health treatment, decreased jail time for participants, and resulted in a “dramatic decrease in jail costs”, as the costs of mental health treatment and other community services were offset by savings in jail expenses⁸.

• From 2008 to 2015, Hampden County’s (MA) jail population declined 30%, in part due to taking a public health approach to jail reentry. Detainees with mental and/or physical health issues are assigned to a physician and case manager upon release and are reminded of upcoming appointments⁹. An evaluation by the National Institute of Corrections found that participants in the jail’s community health model reported significant declines in both physical and mental health problems, as well as substance use.¹⁰

 Endnotes:

This article was included with the support of the Vera Institute for Justice. To read more about the trend toward bigger jails, download their 2015 report: Incarceration’s Front Door: The Misuse of Jails in America report at: http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/01/incarcerations-front-door-report.pdf

¹ Collins, S. E., Lonczak, H. S., & Clifasefi, S. L. (2015). LEAD Program evaluation: criminal justice and legal system utilization and associated costs. Harm Reduction Research and Treatment Lab, University of Washington, Harborview Medical Center.                         ² Milwaukee County District Attorney’s Office (2014). Milwaukee County early intervention programs: http://milwaukee.gov/ImageLibrary/Groups/2014.10.31MilwaukeeCountyEarly.pdf

³ City and County of San Francisco District Attorney, Neighborhood courts: http://sfdistrictattorney.org/neighborhood-courts

⁴ Nice, M. (2006). Court appearance notification system: process and outcome evaluation: https://multco.us/file/26885/download. Multnomah County, OR: Budget Office.

⁵ Ibid.

⁶ McKay, D. (March 15, 2016). Jail population plunges. Albuquerque Journal: http://www.abqjournal.com/555688/bernalillo-county-jail-population-has-plunged.html

⁷ Garofalo, C. (2011). The impact of coordinating multiple criminal cases in the multiple court sites of the Orange County Superior Court. Orange County, CA: Institute of Court Management.

⁸ Ridgley, M. S., Engberg, J., Greenberg, M. D., Turner, S., DeMartini, C., & Dembosky, J. (2011) Justice, treatment, and cost: an evaluation of the fiscal Impact of Allegheny County mental health court. Santa Monica, CA: RAND Corporation: http://www.rand.org/content/dam/rand/pubs/technical_reports/2007/RAND_TR439.pdf

⁹ Hampden County’s public health model was adapted as the Community Oriented Correctional Health Services (COCHS) a nonprofit that promotes partnerships between local jails and community health organizations.

¹⁰ Hammett, T. M., Roberts, C., Kennedy, S., Rhodes, W. (2004). Evaluation of the Hampden County public health model of correctional health care. Abt Associates: Cambridge, MA: https://www.ncjrs.gov/App/publications/abstract.aspx?ID=237358