Despite declining somewhat over the past two decades, America’s incarceration rate remains the highest in the world. Individuals in the United States may spend months in jail awaiting trial and those convicted are more likely than those in peer nations to receive long carceral sentences. Against the backdrop of renewed calls for racial and social justice in response to deaths of Black people at the hands of police, the COVID-19 pandemic has shone an unforgiving spotlight on America’s jails and prisons, where those awaiting trial or serving sentences have experienced disproportionate rates of infection and death due to the spread of the virus. The responses to the pandemic in many jurisdictions have included unprecedented efforts to reduce jail populations and some efforts toward early prison release that provide an opportunity to determine whether reducing pretrial detention or prison sentences can be accomplished without negatively affecting public safety.
The United States has been engaged in efforts to reform pretrial practices and sentencing for more than five decades. The 1966 Bail Reform Act sought to reduce pretrial detention through the offer of payment of money bond in lieu of detention, while rising violent crime rates and an ongoing “drug war” resulted in the 1984 Pretrial Reform Act that once again led to a reliance on preventive pretrial detention. More recently, there has been a renewed push to reduce reliance on financial requirements for pretrial release in response to concerns about the growing numbers of individuals detained and the disparate impact of these detentions on individuals who are poor and people of color. Risk assessment tools that predict failure to appear and new arrests for those released while awaiting trial have been implemented to support release decision making and to provide an alternative to money bail. These tools have also been suggested as a means to reduce disparities in release that may reflect implicit biases and cognitive errors in judgement by those charged with making release decisions quickly with incomplete information. Risk assessment tools continue to garner support despite criticisms that they perpetuate historical biases that exist in the criminal record information used to make the predictions.
Concerns about disparity, discrimination, and unfairness in sentencing led to a sentencing reform movement that began in the mid-1970s and that, over time, revolutionized sentencing. States and the federal system moved from indeterminate sentencing, in which judges imposed minimum and maximum sentences and parole boards determined how long those incarcerated would serve, to structured sentencing policies that constrained the discretion of judges, ensured that sentences were pegged to crime seriousness and to the criminal history of those found guilty, and, in many jurisdictions, eliminated discretionary release on parole.
As the “War on Crime” and the “War on Drugs” escalated during the 1980s in response to increasing rates of violent crime and the drug—primarily crack cocaine—epidemic, reformers also championed changes designed to establish more punitive sentencing standards. These changes included sentencing enhancements for use of a weapon, prior criminal history, and infliction of serious injury; mandatory minimum sentences, particularly for drug and weapons offenses; “three-strikes laws” that mandated long prison sentences for repeat offenders; truth-in-sentencing statutes that required individuals to serve more of their sentences before they were eligible for release; and life without the possibility of parole (LWOP) sentences. Federal support for these efforts included funding under the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322) that established the Violent Offender Incarceration and Truth-in-Sentencing (VOI/TIS) Incentive Grant Program, which was designed to assist state efforts to remove violent offenders from the community. Over five years (FY1996 to FY2001) this program provided states with $3 billion in funding to expand prison and jail capacity and to encourage states to eliminate indeterminate sentencing in favor of “Truth in Sentencing” laws that required individuals to serve at least 85 percent of the imposed sentence.
What have been the results of these efforts at reform? More individuals detained pretrial as the numbers of individuals booked into jails increased and as the proportion of those held in jail pending trial increased from 56 percent of the jail population in 2000 to 66 percent in 2018. Prison populations also skyrocketed—from about 200,000 in 1970 to 1.43 million in 2019. Further, sentences became more punitive, with individuals convicted of felonies in state and federal courts facing a greater likelihood of incarceration and longer sentences than they did in the pre-reform era. The number of individuals serving life—and life without the possibility of parole—sentences also increased dramatically; there are now more offenders serving life sentences than the total number of individual who were held in all U.S prisons in the early 1970s. Worldwide, the United States accounts for more than one-third of all life sentences and eight out of ten LWOP sentences. Moreover, there is persuasive evidence that these punitive changes did not produce the predicted decline in crime but did exacerbate already alarming racial and ethnic disparities in incarceration.
“There are now more offenders serving life sentences than the total number of individuals who were held in all U.S prisons in the early 1970s.”
Pretrial detention and prison incarceration are linked, as those engaged in recent efforts on pretrial reform recognize. Pretrial detention contributes to mass incarceration both directly and indirectly. Pretrial detention results in a greater likelihood that individuals (irrespective of guilt) will plead guilty, a greater likelihood of being sentenced to incarceration, and longer sentences. These impacts are disproportionately borne by people of color—who are more likely to be detained and less likely to be able to afford bond amounts that are often set higher than for similarly situated White defendants.
The consequences of pretrial detention are difficult to reconcile given that many of those detained pretrial are charged with offenses that, were they to be found guilty, would be unlikely to result in incarcerative sentences. Research suggests that pretrial detention is linked to substantially higher recidivism rates post sentencing—suggesting that even if pretrial detention reduces some criminal activity during the pretrial period this is more than offset by much higher recidivism rates after individuals serve their sentences. Further, pretrial detention removes individuals presumed innocent from their families and communities—often resulting in the loss of employment and housing, interrupted treatment, and, in some cases, the loss of child custody. Court imposed fines and fees are passed without making income-based adjustments and failure to pay such fines and fees can result in revocation of one’s driver’s license and further incarceration.
Housing America’s prisoners is expensive—more than $88 billion in local, state, and federal taxpayer monies were spent on corrections in 2016. Most of those in jail are awaiting trial—so the costs of jail are not to pay for punishment. Instead, pretrial detention is meant to ensure attendance at trial and to protect the public from harm by individuals who have not been convicted of a crime. But, in fact, failure to appear at trial is rare and often due to mundane reasons (e.g., forgetting the trial or hearing date). Similarly, new arrests of those released pretrial are also infrequent with arrests for violent crimes rare.
The costs of jail or prison for sentenced individuals are justified in terms of one or more of the purposes of punishment—retribution, incapacitation, deterrence, and rehabilitation. The first of these (retribution) provides voice to the victims of crime and recognizes society’s need for justice. The remaining three are utilitarian justifications of punishment, each of which is designed to prevent or reduce crime. Incarcerated individuals cannot perpetrate new crimes on society at large (incapacitation) and there is a presumption that punishment will deter those who have been punished and those contemplating similar crimes from future criminal acts (deterrence). Finally, as reflected in the last three decades’ focus on reentry programs, society benefits if prisoners can be rehabilitated, reentering society with the skills and desire to be contributing citizens. These goals are often at odds—lengthy prison sentences may be justified by the seriousness of the crime and may act to incapacitate dangerous individuals or to deter potential offenders, but they also may decrease the odds of rehabilitation and successful reentry into the community. Long prison sentences that cause individuals to lose touch with their families and their communities and that reduce their ability to function in society interfere with rehabiliative goals, particularly as the prison environment itself is toxic to individual agency and the skills needed to function in society.
There is an urgent need to identify a balanced strategy with respect to pretrial justice and sentencing, one that will reduce crime and victimization, ameliorate unwarranted disparities, and reclaim human capital currently lost to incarceration. This strategy should identify the costs incurred across the system and society and ensure that these costs are balanced by the benefits. Further, to ensure that the intent of policy changes is realized and to identify unanticipated consequences, rigorous research should assess the impacts and costs of changes, identifying what is promising.
Criminal justice reform is complicated. In the United States, justice responsibilities are spread across the legislative, executive, and judicial branches of local, state, and federal governments. As a result, the costs and benefits of various justice functions are seldom obvious to those making decisions. Further, the costs often accrue to one branch and level of government while the benefits accrue to another—for example, if the local government implements and pays for a program that diverts individuals with mental illness from jail to treatment, thus reducing future criminal activity, the local police and jail may incur fewer future justice system costs but the greatest savings may accrue to the state government that won’t have to prosecute and incarcerate or supervise these individuals in the future. A judicial decision to detain an individual pretrial or to sentence an individual to years in prison (or on probation) imposes costs that are not borne by the judicial branch. As a result, there is often little incentive to change policies and practices. In addition, laws and decisions are often made to address retributive or incapacitation goals—perhaps with a nod to deterrence—without consideration that less punitive—and less costly—interventions might provide better, long-term societal outcomes. Finally, the justice system is often the system of last resort to address the needs of individuals with mental illness and substance use disorders, who often do not have the education and job skills to be successful in the 21st century. Rethinking how society can better address societal disadvantage may relieve the burdens on the justice system and result in better outcomes.
Our recommendations for achieving these goals include the following:
- Cost-benefit Analyses of Pretrial and Sentencing Practices
- Set Fines and Fees on Ability to Pay
- Hold Prosecutors Accountable for Filing and Plea-Bargaining Decisions
- Reconsider Probation and Parole Practices that Contribute to Mass Incarceration
- Inter-Agency Approaches to Reducing Justice System Intervention
- Establish a Presumption of Pretrial Release
- Revise Sentencing Statutes to Ensure Proportionality