The following op-ed was co-authored by R Street Policy Associate Jon Haggerty. 

The “tough on crime” politics of decades past is making a resurgence, and Attorney General Jeff Sessions is leading the charge.

While state legislatures are finding creative ways to reduce both crime and incarceration rates, recent statements by Sessions echo an era when total war was the promulgated solution to crime: mass incarceration, harsh sentences and aggressive policing.

But yesterday’s strategy may no longer be effective. The Arizona Supreme Court and Pima County corrections have both taken steps to reduce jail populations and rehabilitate those with behavioral health problems. Their success may dictate how we approach square one in the criminal justice system — jails.

Local jails hold two categories of people: those who have been convicted of a crime, typically lower-level felonies and misdemeanors with sentences of up to a year, and those who whose cases have not yet gone to trial. This latter group is presumed innocent under the law, but detained because they could not post a bond or were deemed too risky to society.

Largely a product of the era of mass incarceration, jails today churn an incredible 11 million people per year through their doors. Americans now spend more than $20 billion annually on jails, a sum that has grown fourfold since 1983. Yet on any given day, more than 60 percent of people sitting in jail are awaiting trial and presumed innocent. This “pretrial” population drove 99 percent of jail growth from 2000-2015.

If jails were effective at curbing crime, this would be less of a problem. Unfortunately, recent studies show that even short stays in jail can spur a significant increase in a person’s likelihood to reoffend, while longer detentions correlate with even greater odds of recidivism.

Overall crime rates are lower than they have been in decades, but the rate of reoffending is up to 65 percent for some populations. Given that recidivism is one of the biggest challenges the justice system faces, we should begin seeking alternatives to pretrial detention.

The effects of jail on a detained person are exacerbated when that individual has a mental health problem. Jailing the mentally ill predisposes them to high rates of recidivism and makes them more likely to commit suicide. In Pima County, where mental illness and substance abuse affect 60 percent of the jail population and 80 percent of jail detainees have not been convicted of a crime, officials decided to take action.

Partnering with the MacArthur Foundation’s Safety and Justice Challenge, Pima is expanding its screening of arrestees before their initial court appearance. A grant from the foundation will allow pretrial services to expand evidence-based screening to all defendants to assess their likelihood to appear.

The county also has implemented behavioral health screenings before a pretrial detainee’s initial court appearance. This simple step gives judges safe alternatives to incarceration. Through this plan, and other reform efforts, Pima County aims to save taxpayers more than $2 million a year and reduce its jail population by 16 percent over the next three years.

State officials share Pima County’s desire to reform a spiraling justice system. Arizona Supreme Court Chief Justice Scott Bales early last year issued Administrative Order No. 2016-16, which established the Task Force on Fair Justice for All.

The task force’s report, issued last fall, listed 65 recommendations for mitigation of fines and fees, as well as alternatives to jail that would ensure a smarter and more effective criminal justice system.

Among the recommendations were to consider using “specialty courts and other available resources to address a defendant’s treatment and service needs, as well as risk to the community,” before reflexively incarcerating special-needs defendants. It also recommended revising “mental health competency statutes for expediting mental competency proceedings for misdemeanor cases.”

The task force highlighted that the uptick in pretrial detention populations has been driven, in part, by the cash bail system. Factors like loss of employment, eviction and increased exposure to negative influences while in jail all likely play a role in why pretrial detention correlates with a higher likelihood to reoffend.

For these reasons, the report found that “pre-trial detention should be avoided to the extent possible.” Only low-level offenders who meet specific requirements are considered diversion candidates and those released for post-booking treatment still face charges.

That state and local officials recognize the problems with growing pretrial populations and excessive detention of mental health patients should be encouraging. A growing body of research suggests that low-level offender diversion can reduce both crime and incarceration rates.

One success story is the mental health court implemented in Washington, D.C. Participating defendants were 36 percent less likely than the comparison group to be arrested again in the year after completing the program.

This approach also is effective in eschewing the macho impulse to “lock ‘em up and throw away the keys.” It focuses on reducing crime by minimizing recidivism and saving the spiraling costs of incarceration at their inception, in local jails.

Too often ignored in the criminal justice reform dialogue, treating the mentally ill and drug addicted as patients instead of criminals should be a focal point for reform.

Image by frank60


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