By Chloe Anderson, Kyla Wasserman, Brit Henderson, with Erika Lewy

On January 1, 2017, the State of New Jersey implemented Criminal Justice Reform (CJR), a sweeping set of changes to its criminal legal system. With these reforms, the state shifted from a system that relied on money bail to a system that virtually eliminated the use of money bail and uses a risk-assessment tool that informs decision-making by generating scores based on an individual’s assessed risk of failing to appear at future court hearings and committing additional crimes if released. Additionally, CJR granted courts the option to detain people without bail until their cases are disposed, established a pretrial monitoring program, and instituted speedy-trial laws that impose time limits for case processing. The state’s goals were to improve fairness and reduce unnecessary pretrial detention while protecting public safety and ensuring that people continue to show up to their court hearings. While improving racial equity was not an explicit goal of the reforms, racial equity may be affected by reducing pretrial detention and eliminating the use of money bail. With support from the Robert Wood Johnson Foundation’s Policies for Action Program, the New Jersey Criminal Justice Reform Advancing Racial Equity (NJ CARE) Study sought to assess racial equity and perceptions of fairness in New Jersey’s criminal legal system after the implementation of the reforms to determine whether the reforms improved racial equity in the state. Furthermore, the study explored whether individuals who were navigating the pretrial system as defendants perceived it as fair. Their experiences and the reforms’ effects on racial disparities reveal valuable lessons about the effects of bail reform efforts on racial equity. The study employed a mixed-methods approach that included quantitative and qualitative methods, as well as participatory elements. The quantitative analysis found that CJR had a net positive impact on some outcomes for both Black people and White people. More people were issued a summons (rather than a warrant) and were immediately released following arrest, and people were released from jail more quickly following an arrest. Yet despite these positive impacts, racial disparities persisted throughout the pretrial system, to varying degrees. For outcomes that had larger disparities before CJR, there was no meaningful reduction in disparities. The largest disparities are seen at the front end of the pretrial system, in arrest rates and initial jail bookings. For the qualitative analysis, interviewees—who had experience navigating the state’s pretrial system as defendants—said that CJR’s elimination of money bail has improved the fairness of the system. Yet they also said the criminal legal system should consider each person’s voice and circumstances, treat each person with respect, be transparent, assign the least restrictive release conditions when possible, and employ diverse staff members. Taken together, the findings suggest that broad bail reform policies can reduce the footprint of criminal legal system involvement, but they may not be a salve for issues of equity broadly and racial disparities specifically. There are several potential approaches to improve racial equity, including programs or processes that reduce people’s initial contact with the legal system, incorporate procedural justice-informed techniques into policing to improve police-community relationships, elevate the voices of individuals who have experience as defendants, enhance the criminal legal system’s transparency and communication, employ the least restrictive conditions of release and offer supportive services, engage prosecutors in reform efforts, and employ a more diverse staff. As a next step, these potential approaches should be rigorously studied.

In a completely equitable society, individuals would not be any more or less likely to experience burdens during their interactions with societal systems just because of their race. However, historically explicit and implicit practices and policies across the United States reinforce racial inequity, and these racial disparities are observed in many social systems, including the criminal legal system.1 Racial disparities in the pretrial system—that is, the period from the point of arrest to a case’s resolution in a verdict, plea deal, or dismissal— have broad equity implications. Spending time in jail—sometimes even just a few days—is associated with a variety of adverse effects on physical and mental health, as well as on social determinants of health like employment, housing, and family ties.2 Jurisdictions across the country have made efforts to reduce their use of pretrial detention and improve perceptions of the system’s fairness through different types of reforms—most notably by reducing their use of money bail or using actuarial risk-assessment tools to guide release decision-making.3 However, relatively little is known about the effects of these reforms.

New York: MDRC , 2024. 87p.

By The Center for Human Rights

The COVID-19 pandemic has spurred urgent and growing concerns about the health of immigrants held in detention centers in the United States. In fact, awareness of the problem is not new: in 2016, the Department of Homeland Security (DHS) inspector general raised deep questions about the agency’s preparedness for a possible pandemic event,[1] concerns that were reiterated last December when the Centers for Disease Control and Prevention (CDC) denounced DHS for having medical infrastructure it described as “not sufficient to assure rapid and adequate infection control measures.”[2]

Here in Washington, over the course of recent years, increasing activism by people detained at the Northwest Detention Center[3] (NWDC) and community supporters has spurred pointed criticism by elected officials at the local, state, and national level of conditions within the facility. Sustained media attention and multiple lawsuits have also forced the facility to defend its practices. In March 2020, the Washington State Legislature passed HB 2576, a law mandating inquiries into state and local oversight mechanisms regarding conditions in the NWDC, further underscoring the perceived need to address gaps in understanding regarding the health and welfare of those housed within the facility.

In this context, the UW Center for Human Rights (UWCHR) considers it important to make our ongoing research on conditions within the NWDC available to the public. As part of our longstanding effort to examine the human rights implications of federal immigration enforcement in our state, UWCHR has sought, since 2017, to obtain information about conditions of detention in public and private detention facilities where immigrants are housed in Washington state.[4] While our efforts to obtain information about conditions within the NWDC have been only partially successful due to the lack of transparency surrounding the facility, the information we have obtained is sufficiently concerning, particularly in the context of the COVID-19 pandemic, that we are choosing to share our initial findings with the public even as our collection and analysis of further data continues.

This report will be published as a series discussing areas of human rights concern at the facility, including background, methodology, and relevant human rights standards; sanitation of food and laundry; allegations of medical neglect; use of solitary confinement; COVID-19 and health standards; reporting of sexual assault and abuse; and uses of force and chemical agents. The report includes research updates covering concerns about cleanliness at the detention center going unanswered and a look at the context for Charles Leo Daniel’s death at the NWDC.

The Henry M. Jackson School of International Studies, University of Washington

By Christina Das and Jackie O’Neil

Across the country, thousands of elected officials wield considerable power over the function and outcomes of the criminal legal system. Each year, in some states and districts, voters elect state attorneys general, district attorneys, sheriffs, state supreme court judges, and trial court judges. These elected officials make choices and take actions that formatively influence the functions of the criminal legal system. For example: district attorneys have considerable discretion when deciding whether to file criminal charges against someone accused of committing a crime, and trial court judges make decisions that significantly impact the outcomes of criminal trials, such as determining what evidence can be shown to a jury. However, millions of Americans who have a vested interest in the fairness of our criminal legal system – those who are detained while awaiting their criminal trial – are denied a meaningful opportunity to vote, despite their right under the law to do so. Most individuals held in city or county jail at any given time have not been convicted of any crime and are awaiting a trial, meaning they retain their legal right to vote, but procedural and logistical barriers make it difficult or impossible for them to do so. Reforms that make it easier to vote from jail, up to and including the establishment of polling locations inside jail facilities, will help eligible incarcerated voters to actualize their right to vote from jail.

New York: NAACP Legal Defense Fund and Educational Fund, Thurgood Marshall Institute, 2023. 15p.

By Sara Wakefield, Lars Højsgaard Andersen

Using unique Danish register data that allow for comparisons across both conviction and incarceration status, this article analyzes the association between pretrial detention and work, family attachment, and recidivism. We find that pretrial detention may impose unique social costs, apart from conviction or additional punishments. Most notably, men who are detained pretrial experience poorer labor market trajectories than men who are convicted of a crime (but not incarcerated). Importantly, this result holds even for men who are detained pretrial but who are not convicted of the crime. Consistent with prior research, we also find that pretrial detention is unrelated to later family formation but might disrupt pre-existing household arrangements. Finally, the associations between pretrial detention and work and family life are not counterbalanced by reductions in recidivism.

Sociological Science 7: 342-366. 2020.

By Christopher Lowenkamp

Using data from over 1 million people booked into a jail in Kentucky between 2009 and 2018, this study investigates the relationship between pretrial detention and failure to appear, rearrest, and sentencing outcomes. The author’s analysis indicates that there is no deterrent effect of pretrial detention, as incarcerating people prior to their trial does not result in better pretrial outcomes in terms of failure to appear or rearrest. The author also concludes that the costs of pretrial detention do not translate to increased public safety.

Kentucky. Arnold Ventures. March 2022. 8p.

By Justin Helepololei

This dissertation draws on ethnographic research conducted with prison abolitionists and criminal justice reform activists in Western Massachusetts - a context in which the sheriffs who operate county jails see themselves as reformers. I use the concept of a “progressive jail assemblage” to analyze the varied actors and logics that sustain incarceration locally, focusing especially on the use of care discourses and practices. I consider how progressive jailing puts prison abolitionists in the position of being against some forms of care. At the same time, abolitionists have put forth competing notions of care, ones they see as building a world in which prisons and jails would not exist. Informed by interviews with formerly incarcerated organizers who navigate this assemblage, I argue that both tendencies have the potential to reinforce the hierarchies that sustain incarceration, but they also have the potential to create openings for undoing the world as it exists.

Amherst, MA: University of Massachusetts, 2023. 265p.

y Léon Digard and Elizabeth Swavola

Approximately two-thirds of the more than 740,000 people held in locally run jails across the United States have not been convicted of a crime—they are presumed innocent and simply waiting for their day in court.a This “pretrial population” has grown significantly over time—increasing 433 percent between 1970 and 2015, from 82,922 people to 441,790.b People held in pretrial detention accounted for an increasing proportion of the total jail population over the same time period: 53 percent in 1970 and 64 percent in 2015.c This growth is in large part due to the increased use of monetary bail. Historically, the purpose of bail was to facilitate the release of people from jail pending trial, with conditions set to ensure their appearance in court. Over time, however, those conditions have shifted away from no requirement that money be paid—or a requirement that money be paid only when people failed to appear in court—to upfront payment of cash bail and bail bonds issued by for-profit companies. Pretrial detention has far-reaching negative consequences. This brief presents information on the way that pretrial detention is currently used and summarizes research on its impacts.

New York: Vera Institute of Justice, 2019. 17p.

By Melvin Washington II

For decades, the United States has responded to social issues like mental health and substance use crises, chronic homelessness, and ongoing cycles of interpersonal violence with jail. This has disrupted the lives of millions of people—disproportionately harming Black and Indigenous people—without improving public safety. There’s a better way. Communities can instead invest in agencies and organizations that address these issues outside the criminal legal system. The proven solutions highlighted in this multimedia report look beyond jails to promote safe and thriving communities.

More than 3,000 jail facilities operate in the United States. Before the COVID-19 pandemic, those jails processed about 10 million bookings annually. Some people stayed for hours and others for months. Overall, the number of people in jail has grown exponentially over the past 40 years—from about 220,000 in 1983 to more than 750,000 in 2019. In response to the COVID-19 pandemic, some jurisdictions took emergency actions to prevent the virus’s spread among incarcerated people and jail staff, which cut jail populations by an estimated 24 percent during the first half of 2020. However, these changes proved temporary; by June 2020, national jail populations were already rising. By the end of 2020, the population had rebounded by more than 50,000 people.

New York Vera Institute of Justice, 2021. 28p.

By Alison Siegler

  This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty. 2 This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process. Our Clinic undertook an in-depth study of federal bond practices, in which court watchers gathered data from hundreds of pretrial hearings. Based on our empirical courtwatching data and interviews with nearly 50 stakeholders,3 we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law. 4 As one federal judge told us, “nobody’s . . . looking at what’s happening [in these pretrial hearings], where the Constitution is playing out day to day for people.” Our Report aims to identify why the federal system has abandoned the norm of liberty, to illuminate the resulting federal jailing crisis, and to address how the federal judiciary can rectify that crisis. This Report also fills a gaping hole in the available public data about the federal pretrial detention process and identifies troubling racial disparities in both pretrial detention practices and outcomes. Federal pretrial jailing rates have been skyrocketing for decades. Jailing is now the norm rather than the exception, despite data demonstrating that releasing more people pretrial does not endanger society or undermine the administration of justice. Federal bond practices should be unitary and consistent, since the federal bail statute—the Bail Reform Act of 1984 (the BRA)—is the law of the land and governs nationwide.5 Yet this study exposes a very different reality than that envisioned by the Supreme Court, one in which federal judges regularly deviate from and even violate the law, and on-the-ground practices vary widely from district to district. O  

Chicago: University of Chicago, School of Law, Federal Criminal Justice Clinic, 2022. 280p.

By Mark Dow

American Gulag takes us inside prisons such as the Krome North Service Processing Center in Miami, the Corrections Corporation of Americas Houston Processing Center, and county jails around the country that profit from contracts to hold INS prisoners. It contains disturbing in-depth profiles of detainees, including Emmy Kutesa, a defector from the Ugandan army who was tortured and then escaped to the United States, where he was imprisoned in Queens, and then undertook a hunger strike in protest. To provide a framework for understanding stories like these, Dow gives a brief history of immigration laws and practices in the United States—including the repercussions of September 11 and present-day policies. His book reveals that current immigration detentions are best understood not as a well-intentioned response to terrorism but rather as part of the larger context of INS secrecy and excessive authority.

Berkeley and Los Angeles: University of California Press, 2004. 429p.