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| Wilford Pinkney |
The newspapers are full of stories about people like Janice, who upon further examination, should have been released. Now, a movement is afoot across the country to work on bail reform.
But the term "bail reform" invokes a false binary choice of instituting bail or no bail, cash bail or a different kind of bail. The focus on setting bond then leads to discussions of being soft on crime versus presuming innocence. However, releasing people after arrest does not mean they are not held accountable for their actions. Often times it prevents a bad situation from becoming worse and costing taxpayers more money. Additionally, detaining them before trial might not be the best approach. The question we need to answer is whether this is the best way to address their behavior and its root causes. If we really want to understand how to end the cycle of injustice, we need to look more broadly at the system.
Instead of "bail reform," we need to focus on reforming the early stages of the criminal justice process — and all the interactions that lead up to the point of bond determination. In order to reduce pretrial detention and over-incarceration, we need to pull the lens back and look at the system holistically. This will give us an understanding of where the interventions have to happen.
As a FUSE Corps fellow working with the St. Louis Department of Public Safety, I have been tasked with designing comprehensive pretrial reform, which includes designing realistic alternatives to bail and bond. I've engaged numerous stakeholders both inside and outside of the system about what they've observed. In my research, some fundamental questions have come up:
- Where should our initial focus be?
- What changes can be made within the constraints of the current system?
- How are we viewing people who come in contact with police?
- Are stakeholders aware of how their actions are part of the larger whole?
The costs associated with incarceration give us insight into the most effective approach. According to the National Council of State Legislators, 64 percent of people in local jails identify as having mental health problems. A pilot project in St. Louis revealed that 87 percent of those incarcerated in the city have a history of substance abuse. According to the Vera Institute, $14 billion is spent annually to detain people who are mostly low-risk. But that is just the direct costs of incarceration. It is estimated that for every $1 in direct cost, society incurs $10 in indirect cost, such as lost earnings, child care, health, future incarceration and court appearances. The Treatment Advocacy Center found that it is 60 to 100 percent more expensive to jail people who have health, mental health or substance use disorders. We must find ways to interact with people that prevents them from even getting to the bond stage.
After months of research and analysis, I identified four streams of the criminal justice process — up to the point of bond determination — that must be considered.
- Prevention is where the community and criminal justice stakeholders engage in activities that protect life and promote the well-being of the community. This involves activities that address the root causes of crime, promote healthy thoughts and actions and, where necessary, reconnects people with healthy relationships.
- Intervention involves activities that attempt to divert people away from the criminal justice system, and use data to identify the needs of the community with an eye toward alternatives that meet those needs.
- Determination involves activities that focus on assessing risk, and releasing people as soon as possible after arrest without the need for bond decisions.
- Supervision involves activities that determine whether defendants will be able to return to the community or remain detained pretrial.
Each of these interactions are related to each other, linked by circumstance, timing, and existing processes. Pretrial involves a diverse set of players. Each with a specific role and set of responsibilities that are inherently intertwined. However, too often stakeholders only look through their own lens when evaluating the system.
That's all the more reason why breaking the cycle of over-incarceration requires genuine, heartfelt collaboration between criminal justice agencies. Staying in silos, chipping away at just at one slice of the issue — whether it's cash bail or something else — will not make as big an impact on the system at large as working collaboratively within each of these streams. Succeeding at this requires having difficult conversations and bringing together the right people.
Envisioning a Different Outcome
Janice Dotson-Stephens' tragic story is a result of the lack of collaboration and coordination among the pretrial players. For example, did the arresting officer know about her history of mental illness? Could she have been diverted to a treatment center at an affiliate community-based organization? What assessment or evaluation was done when arresting her? Could the screening process have been done in jail? Did the public defender ask the right questions?
Coordinating between the health and social care systems would have proactively addressed her mental health condition by connecting the multiple agencies that Janice came in contact with when in crisis. Law enforcement working with these coordinated systems during the interactions could have also made referrals to community-based treatment centers.
If the arresting police officers had recognized that Janice had behavioral health needs, they could have diverted her from arrest and redirected her to behavioral health and crisis professionals. Janice would have been connected with community-based services to help her avoid future crisis. This approach would also involve having regular meetings with the various stakeholders to ensure follow-up and evaluation.
At the booking stage, Janice could have undergone an evidence based risk and needs assessment. The assessment could have been done by a behavioral health or pretrial services professional who would use interview techniques that encourage Janice to engage. Janice's mental illness would have been recognized early in the booking process and she could have been referred for evaluation.
If Janice made it to the point of bond determination, defense counsel could have met her and acted upon any available information. A pretrial service agency would have had the ability to determine release based on criteria developed with other stakeholders. The pretrial service agency would also provide a supervision option that would encourage pretrial release. Health and social service systems would also provide services based on referrals, as a condition of release or a continuum of care upon release.
The integration of all of these interventions can allow for multiple checks on the system and increase the likelihood that a person is released as soon as possible after arrest.
Pretrial work today is very focused on identifying alternatives to detention. Using this holistic approach of different interventions at various points of the process could have prevented not only her pretrial detention but maybe even her arrest and booking.
Though my project began with bail reform, it is now taking on a much wider scope, as it should. Because it is just one piece of the puzzle that will help reduce the number of people unjustly imprisoned.
Wilford Pinkney Jr. is a fellow with FUSE Corps.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general informational purposes and is not intended to be and should not be taken as legal advice.