Jails and Pretrial Release
Abstract and Keywords
This article begins with an overview of the jail inmate population. Data reveal the current makeup and important shifts in inmate characteristics. Section II discusses the historical development of jails and pretrial release. Section III reviews the empirical evidence on contemporary pretrial release issues, including trends in pretrial release and detention, correlates of release decisions, and dimensions of supervision and misconduct among released defendants. Section IV turns to contemporary jail issues of direct supervision in new generation facilities, mental health, and adjustment to jail confinement. Section V concludes with a discussion of policy implications and fruitful directions for future research.
A critical point in the process of criminal justice is reached shortly after someone suspected of a crime is arrested. Unless the charge is minor (and the suspect meets certain other criteria), he or she is typically booked into a detention facility—a jail. The defendant may remain in the jail until the final disposition of his or her case or may be released back to the community pending such an outcome. The stakes are high—personal liberty for the accused, risk of potential danger to the community, and the very ability to proceed against the defendant for the judicial process. The volume is also remarkable. According to the latest estimates from the Bureau of Justice Statistics, the average daily inmate population of all local jails in the United States stood at more than 776,500 (Minton and Sabol 2009). This figure is dwarfed, however, by the number of bookings that jails handle each year—approximately 13.4 million (Sabol, Minton, and Noonan 2009). Thus, jailing and pretrial release are vital concerns in criminal justice.
There are ostensible benefits to holding criminal defendants in jail until the final adjudication of their cases. It has been asserted that detention assures appearance for court proceedings, incapacitates defendants from committing crimes against free citizens, and presents the possibility of participation in rehabilitative, educational, vocational, or other institutional treatment programs. Critics, however, point out that pretrial release is more consistent with the presumption of innocence prior to conviction. Thus, by releasing defendants while their cases progress, liberty is restored to citizens who have not yet been convicted of a crime. Moreover, pretrial release may allow defendants to participate (p. 796) more fully in preparing their defense and to maintain community ties including connections to family and employment. Compared to incarceration, pretrial release may also be less stressful for the accused and, in addition, is less costly for correctional departments. In some cases, release is used as an emergency measure to reduce jail crowding.
Throughout this chapter, consideration is given to the structure and function of institutions as well as to decision points in the progression of criminal cases. Pretrial defendants account for about 63 percent of local jail inmates (Minton and Sabol 2009). Importantly, jails also hold inmates who have been convicted and are serving a sentence usually of a year or less, individuals who were previously convicted and are now facing charges of violating probation or parole conditions, and small numbers of inmates who are being held for a variety of other reasons. Jails, therefore, must be viewed as organizational entities whose responsibilities extend beyond pretrial detention. Similarly, pretrial supervision programs have become an important component of pretrial release. The proliferation of these programs requires that any consideration of pretrial release move beyond the initial exercise of discretion to release or detain defendants.
Several important themes emerge in an examination of research on jails:
• Jail incarceration rates have risen dramatically, currently reaching 258 inmates per 100,000 citizens.
• More than 60 percent of jail inmates are being held pretrial.
• Conditions of early jails were dismal, while contemporary jails have more humane living conditions.
• Podular/direct supervision jails may reduce misbehavior among inmates and improve working conditions for jail officers.
• Jail inmates have abnormally high rates of mental disorders, distress, suicide, and self-injury. The experience of being jailed contributes to these problems.
A number of conclusions can be drawn from the literature on pretrial release:
• Reform movements in pretrial release focused on appearance at trial in the 1960s and danger to the community in the 1970s and 1980s.
• Defendants at the federal level are detained before trial at more than one and one-half times the rate of defendants in state courts. Bail is the most common method of release.
• Offense-related variables are the strongest predictors of release decisions. The evidence on whether defendant’s race, ethnicity, and sex are related to release is mixed.
• Pretrial misconduct occurs at higher rates among defendants with weaker community ties and more extensive criminal justice involvement. It is unclear what impact pretrial supervision has on misconduct.
(p. 797) Section I provides an overview of the jail inmate population. Data reveal the current makeup and important shifts in inmate characteristics. In section II, I discuss the historical development of jails and pretrial release. I review the empirical evidence on contemporary pretrial release issues in section III, including trends in pretrial release and detention, correlates of release decisions, and dimensions of supervision and misconduct among released defendants. Section IV turns to contemporary jail issues of direct supervision in new generation facilities, mental health, and adjustment to jail confinement. Section V concludes with a discussion of policy implications and fruitful directions for future research.
I. The Jail Inmate Population
The United States has increased the number of prisoners held in local jails at a remarkable rate. The 1880 decennial census provides the earliest reliable national estimate of the extent of jail incarceration—18,686 inmates, or 37 inmates for every 100,000 people in the US population (Cahalan and Parsons 1986). Because the US Census Bureau subsequently counted only sentenced inmates, data for the next several decades are not directly comparable. Over the following century, however, the jail inmate population increased nearly tenfold; by 1980, jails held an estimated 182,800 inmates (Snell 1995). A portion of this shift can be attributed to broader growth in the American population. Controlling for the country’s expansion reveals a more modest, but still considerable, rise in jail use. The incarceration rate per 100,000 citizens increased by 2.5 times from 1880 to 1983 (Cahalan and Parsons 1986). During the 1980s and 1990s, the extent to which people were held in American jails rose more dramatically. In the ten-year period from 1983 to 1993, the number of inmates doubled from 223,551 to 459,804 (see figure 25.1). Similarly, the incarceration rate went from 96 to 188 per 100,000 (Perkins, Stephan, and Beck 1995). More recently, growth has slowed. From year 2000 to 2008, the average annual growth rate—2.9 percent—was less than half what it had been during the preceding two decades. Still, as of midyear 2008, 785,556 people—one out of every 387 U.S. citizens—were held in a local jail (Minton and Sabol 2009) (see figure 25.2).
A few trends in the makeup of the inmate population should be noted. First, the extent to which the inmate population is comprised of those who have been convicted has declined over time. In the late 1800s three-quarters of jail inmates had been sentenced. By 1970, however, less than half were convicted (Cahalan and Parsons 1986). Since 2003 this figure has stood below 40 percent, and the most recent assessment places it at 37.1 percent (Minton and Sabol 2009). Thus, a strong majority of inmates in local jails are being held pretrial. Second, women as a proportion of all jail inmates have increased in the past few decades. In 1970, they were 5 (p. 798) percent of the population (Cahalan and Parsons 1986); by 2008 they made up 12.7 percent of jail inmates (Minton and Sabol 2009). Third, comparisons across time are complicated by classification issues, but the racial composition of the inmate population appears to have been fairly stable recently, while ethnicity has shifted. (p. 799) Counts produced in the late 1970s and early 1980s of whites and blacks included those who were of Hispanic origin. About 57 percent of inmates were white and 40 percent were black. Ten percent were Hispanic (Cahalan and Parsons 1986). More recently, inmates have been classified differently; Hispanics are not accounted within racial groups. Thus, in 2008, 42.5 percent of inmates were non-Hispanic whites, 39.2 percent were non-Hispanic blacks, and 16.4 percent were Hispanic (Minton and Sabol 2009). These figures (see table 25.1) are more or less the same as they were at the start of the decade (Beck and Karberg 2001).
Table 25.1. Trends in Jail Inmate Characteristics
Note: Races other than White, Black, and Hispanic are not shown. In 1970, Hispanic jail inmates were included in counts of White and Black jail inmates.
A number of scholars have offered explanations for the high imprisonment rate in the United States.1 One possibility is that imprisonment increased in step with rising crime. When the United States is considered alone, this explanation seems plausible as the rate of crime, particularly violent crime, was high during the 1980s and 1990s. Cross-national comparisons reveal, however, that America was not unique in its experience with crime. Other Western nations also experienced rising crime, but their incarceration rates did not follow the trend of dramatic increase experienced in the United States. Tonry (2008) observes that, taking jails and prisons together, the incarceration rate of the United States was quite similar to that of other Western nations in the early 1970s but was five to ten times higher by 2005.
In somewhat similar fashion, placing responsibility on public opinion falls short. The citizens of other nations hold opinions on crime and punishment that are fairly similar to those of the American public (Roberts et al. 2002). Similar estimates of the amount of crime, beliefs about trends in crime, and opinions on what ought to be done with offenders cannot explain why the United States charted a distinctly different path with policies leading to incarceration. Notably, there is also good evidence that public opinion in the United States has often followed, not led, efforts to “get tough” with offenders (Beckett 1997).
Theories that delve more deeply into the structure and culture of American society offer more promising explanations. Garland (2001) contends that recent (p. 800) periods of increased incarceration reflect certain post-modern realities. In his view, preoccupations with uncertainty, danger, and risk (in concert with governmental limitations in effecting lower crime rates) have resulted in policymakers trying to “do something” to reassure the public. Tonry (2004) points out, however, that Garland’s explanation still does not account for cross-national differences. In his 2007 presidential address to the American Society of Criminology, Tonry (2008, 4) argued that U.S. imprisonment policies were possible because of weak human rights concerns born of “the paranoid style in American politics, religious fundamentalism, an obsolete constitutional system, and the history of American race relations.” That is, uniquely American political processes and contemporary sensibilities about crime account for the incomparable use of incarceration (also see Tonry 2004).
II. Historical Developments
The roots of modern American jails are usually traced to twelfth-century England. Mainly, the early English jail was used to detain people until the next time a judge visited a county, and defendants could then be brought to trial. Sometimes this meant being held in jail for months or years before being tried. Jails also incarcerated people who had been convicted and fined but were unable to pay. Rather than this period in jail serving as punishment in lieu of the fine, convicts were simply held indefinitely until they or someone else paid their fine. At this time, incarceration only rarely served as the punishment for offenders after they had been convicted, a practice that persisted for several centuries (Moynahan and Stewart 1980).
Despite the lack of punitive intent, many inmates found the conditions of these jails barely livable. Because the facilities generally were not very secure, inmates might be chained to each other or to a wall or the floor, especially at night. Jails were cold, dark, wet, and commonly comprised a single space, prohibiting segregation by sex or age. Disease was always a concern, and many people died while in jail (McConville 1995). Rather than being funded by the government, jails operated on the basis of inmate fees. Inmates were charged for food, water, bedding, clothing, and even for being admitted to and released from the jail. Often indigent inmates did not live to be released, but inmates with the ability to pay substantial sums enjoyed fine food, comfortable quarters (perhaps in the keeper’s own house), entertainment, beer, and even having their family and servants live with them.
Jails remained largely unchanged in England from the twelfth through the seventeenth century, so it is not surprising that early colonial American jails shared many of these characteristics. Colonists began building jails shortly after their arrival in America, around the mid-1600s. Most of these facilities operated with (p. 801) inmate fees and consisted of a single room with no provision for separating inmates. Jails also continued to house, almost exclusively, defendants who were awaiting trial and those who had been found guilty and were waiting to be punished. Incarceration in jail itself still was not considered punishment (Rothman 1971).
The origin of a right to be released pending trial via bail also can be traced to England. The 1689 English Bill of Rights laid the foundation for including a right to bail in early American laws (Goldfarb 1965). The Judiciary Act of 1789 established the judicial branch of the United States federal government but also asserted a presumption of bail for offenses where the possible punishment was not death. Two years later, the Eight Amendment to the US Constitution prohibited the imposition of excessive bail. Even so, bail was often set above a defendant’s ability to pay, assuring detention until the resolution of his or her case.
In the following century, several substantial changes occurred in the use and operation of jails. By the 1800s, most jails had shifted from being used almost exclusively for pretrial detention to also providing punishment in the form of incarceration to offenders who had been convicted of minor crimes (Moynahan and Stewart 1980). Jails continued to hold children, slaves, the mentally ill, and debtors, but during this century they began to separate male and female inmates. Modest improvements in the conditions of confinement also were introduced, including improved ventilation and lighting, heat, and abolishment of the inmate fee system.2
Throughout the twentieth century, improvements in the construction, operation, and conditions of US jails continued. Reforms, however, were achieved in small, irregular steps, perhaps owing to local level control and operation of jails (Mattick 1974). Early in the century, Fishman (1923) recounted observations of South Carolina jails that reflected many of the same deplorable conditions of earlier institutions: “In rainy weather, the water pours down into the jail in torrents … sewage not properly disposed of … floor and bedding dirty … jail improperly heated … scraps of decaying food lying around … the building has only two compartments, making it almost impossible to separate properly the inmates according to sex, race, and age” (241–44). These conditions were not unique to South Carolina or to the early part of the twentieth century. In the mid-1970s, Mattick (1974, 782) drew the conclusion that “jails everywhere are inadequate.” While some critics called for abolition of jails, eventually the conversation turned to ways to improve jails. Much of the progress achieved on this front can probably be attributed to the contributions of national organizations interested in correctional work such as the American Prison Association, the American Correctional Association, the National Institute of Corrections, and others. The American Jail Association, for example, implemented several initiatives to support professionalization and improvement of local corrections, including facility accreditation standards, officer certification requirements, and training seminars (American Jail Association 2007). These organizations provided not only broad principles and ideals (Mattick 1974) but also conduits for cross-jurisdictional communication about jail standards.
(p. 802) Concerns about the conditions of local jails and about the fairness of pretrial detention spurred a reform movement in pretrial release in the 1960s. At this point, the predominant method of release before trial was through financial bond—defendants were released only if they posted cash or property as collateral meant to assure they appeared before the court for future hearings. When defendants were believed to be potentially dangerous, preventive detention was sought through a sub rosa process of setting higher bond amounts. Critics observed that such practices discriminated against poorer defendants, often resulted in arbitrary and highly inconsistent decisions about bond amounts, and probably resulted in detention of more defendants than necessary (Goldfarb 1965; Goldkamp 1985).
Discussion focused on how to enhance due process while still assuring appearance at trial. In an innovative effort to reform pretrial release practices, the Vera Institute of Justice implemented the Manhattan Bail Project in 1961. Project staff determined the strength of each defendant’s community ties and developed recommendations regarding release or detention, based on the likelihood of appearance for subsequent court dates. The project demonstrated that many people could be released without bail and would still appear for trial (Vera Institute of Justice 2004). Shortly thereafter, the US federal government passed the Bail Reform Act of 1966, which established release on recognizance—releasing a defendant without the security of bail—as presumptive in noncapital cases. In addition, conditional release—the defendant must agree to certain conditions such as regular reporting and abstaining from alcohol and drugs—and deposit bail—the defendant was required to deposit a small percentage of the full bail amount with the court—emerged as more widely used options through the 1960s and 1970s (Thomas 1976).
A second reform movement in the 1970s and 1980s, however, had a different tone. As Goldkamp (1985) notes, the outcome of interest shifted from assuring appearance at trial to assuring the safety of the public. The danger that defendants might pose to the community if they were released served as the new foundation for reforming pretrial detention practices. The clearest expression of this new direction was the federal Bail Reform Act of 1984.3 Although it retained the presumption of release on recognizance or on unsecured personal bond from the earlier act, this new legislation explicitly endorsed preventive detention in cases where it is judged that “no condition will reasonably assure … the safety of the community” (Federal Judicial Center 1993, 7). Thus, the imposition of high bail as an effort to keep potentially dangerous defendants confined was replaced by the ability to deny release altogether. The constitutionality of preventive detention based on a prediction of future dangerousness was subsequently upheld in U.S. v. Salerno 481 U.S. 739 (1987). The Supreme Court ruled that “preventing danger to the community is a legitimate regulatory goal” and that pretrial detention is a permissible means of pursuing it (at 747).
(p. 803) III. Contemporary Pretrial Release Issues
The decisions and processes that result in defendants returning to the community or remaining incarcerated until the final disposition of criminal cases account for a substantial portion of jail populations.
A. Pretrial Release and Detention Trends
An examination of recent patterns of pretrial release and detention reveals some useful insights. The U.S. Bureau of Justice Statistics’ State Court Processing Statistics (SCPS) program gathers felony pretrial data biennially from a sample of the seventy-five largest counties in the United States. Cohen and Reaves’s (2007) analysis of data from 1990 to 2004 shows that the portion of defendants detained before trial has remained largely stable. Averaged across this series, 38 percent of defendants have been detained until their cases were resolved. Moreover, the detention rate has varied little since 1990. At its lowest point in 1998, 36 percent were detained, and it reached its zenith, 43 percent, in 2004. The pattern is distinctly different, however, at the federal level. The proportion of federal defendants detained has increased steadily in recent years. In 1992, 38 percent of federal defendants were held in jail pending the outcome of their cases (Byrne and Stowell 2007). By 2008 the rate had reached 62.5 percent (Administrative Office of the United States Courts 2009). Thus, federal defendants are more likely to be detained, and the gap in detention rates between the federal and state systems has widened.
It is unclear what explains the difference in trajectories for pretrial detention at the state and federal levels. VanNostrand and Keebler (2009) show that the federal courts processed an increasing number of higher-risk defendants between 2001 and 2007, but federal courts detained a rising percentage of defendants at all risk levels across this period. Byrne and Stowell (2007, 37) contend that the increased rate of pretrial detention at the federal level reflects a “preoccupation with drugs, weapons, and immigration law violations” and control-oriented policy choices. Comparable analyses of state pretrial risk, detention, and policy trends are not available.
Although the existing data do not provide a clear explanation for growth in pretrial detention at the federal level and stasis at the state level, they suggest a possible cause of the gap: greater use of preventive detention with federal defendants. Scalia (1999) reports that 34 percent of federal defendants in 1996 were ordered detained pending adjudication of their cases. In contrast, for the same year SCPS data reveal 6 percent of state defendants were denied release (Hart and Reaves 1999). Use of preventive detention for felony defendants at the state level has not exceeded 7 percent since (Reaves 2001; Rainville and Reaves 2003; Cohen and Reaves 2006; Kyckelhahn and Cohen 2008).
(p. 804) Defendants who are not preventively detained may be handled through several mechanisms. Defendants may be released outright—release on own recognizance (ROR)—or if they meet certain conditions set by the court. The least restrictive alternatives include nonfinancial conditions—such as regular reporting, drug testing, or mental health treatment—and unsecured bond—a monetary bail amount is set but the defendant pays nothing unless he or she fails to appear in court. Financial conditions of release may require the defendant to post the entire bail amount—cash bond—or only a percentage, either to the court—deposit bond—or to a private bail bond agent—surety bond. Cohen and Reaves (2007, 2) note a “pronounced trend … in the type of release used” in American state courts between 1990 and 2004. At the beginning of this period, 40 percent of defendants secured a nonfinancial release. Twenty-four percent of defendants were released on financial conditions. By 2004, nearly the opposite was true—28 percent of defendants secured a nonfinancial release, and 36 percent were financial. Most of the difference is accounted for by the two most common release options. Use of ROR dropped, and surety bonds increased.
Looking at released defendants tells only a portion of the story. It does not reveal what conditions faced those who were not preventively detained but also were not released. The emerging dominance of financial releases could signal an increased ability to pay among defendants. Examining the conditions set for all defendants, however, calls this explanation into question. In 1990 only 53 percent of defendants had to meet a financial condition to be released. By 2004 this figure had reached 68 percent. Throughout the period, about half of those who had to “make bail” did so (Cohen and Reaves 2007). Thus, it appears that release on financial conditions grew due to greater reliance on financial requirements as a condition of release, not because of any change in the financial resources available to defendants.
B. Correlates of Pretrial Release
As noted earlier, two broad considerations structure decisions whether to release a defendant and what conditions to impose on that release: the risk of danger to the community, witnesses, and victims, and the risk of flight from prosecution. The particular factors that are legislatively or constitutionally established as legally relevant for making pretrial release decisions vary somewhat among jurisdictions, but several are nearly ubiquitous. Typical indicators of risk are the nature of the current offense, the weight of the evidence against the defendant, prior criminal record, prior failure to appear in court, residential stability, marriage and other family ties, and employment (Goldkamp 1985). Each of these factors ostensibly shapes whether the defendant is preventively detained, released without conditions, released with conditions, or required to post bail for release, and the bail amount if it is imposed.
It should not be surprising that empirical research typically shows offending-related variables to be among the most powerful predictors of pretrial release decisions (p. 805) and outcomes. Cohen and Reaves (2007), controlling for other variables, found that the predicted probability of release was lowest for defendants charged with murder (11 percent) or robbery (36 percent) and considerably higher for those facing fraud (76 percent) or driving-related felony charges (76 percent). Those who had been on probation or parole at the time they were arrested were less likely to be released as were those with a history of prior arrests, convictions, or failures to appear in court. Others similarly report that offense severity and prior criminal and court records emerge as the strongest correlates of pretrial release (Goldkamp 1979; Goldkamp and Gottfredson 1985; Gottfredson and Gottfredson 1988; Walker 1993; Steiner 2009).
For defendants who are offered release under financial or nonfinancial conditions, release is ultimately determined not only by the court’s decision to offer release but also by the defendants’ willingness and ability to meet those conditions.4 Looking only at the final outcome—whether a defendant is in or out of jail—therefore, may obscure important correlates of prior steps in the pretrial process.
Recent studies by Demuth (2003; Demuth and Steffensmeier 2004) emphasize the need to distinguish decisions from outcomes. Separate models were estimated for predictors of preventive detention, imposing financial release conditions, setting of the bond amount, whether defendants who were offered release on bail remained in jail, and whether defendants were ultimately released pending adjudication. For the most part, Demuth’s (2003; Demuth and Steffensmeier 2004) analyses affirmed that a more serious current offense, prior failure to appear, prior arrest or incarceration, and being under criminal justice supervision at the time of arrest consistently predicted not only eventual detention but also eligibility for release, setting of bail as a release condition, bail amount, and whether the defendant made bail. Offense type revealed one notable exception. Although defendants facing charges for assault, drug trafficking, or “other” property, violent, or drug offenses were more likely to have bail imposed and to have a higher bail amount, their odds of making bail were one-and-one-half to two times those of defendants facing charges for theft (the reference category in their analyses). It is unclear what explains the differential willingness or ability to make bail among these defendants.
In addition to legally relevant variables, scholars have also considered the potential impacts of race, ethnicity, and gender on pretrial release. A common concern raised in support of reforms in the 1960s was that bail as a requirement for release from jail disadvantaged lower income defendants. Because race has a long history of linkage with economic resources in the United States, financial release policies functioned particularly to the detriment of racial minorities (Goldfarb 1965). More recently, Demuth (2003; Demuth and Steffensmeier 2004) suggested that race, ethnicity, and gender may influence pretrial release because of their connection to judges’ “focal concerns.” Drawing on sentencing theory (see, Steffensmeier, Ulmer, and Kramer 1998), Demuth (2003, 225) proposed that status characteristics may be used as shorthand indicators as judges consider “blameworthiness, protection of the community, and practical constraints and consequences.”
(p. 806) The empirical research on race, ethnicity, gender, and pretrial release is mixed. A handful of studies have found that minority status has no significant effect on pretrial release decisions once legally relevant variables are considered. Others, however, have revealed detrimental effects for minorities and men (Free 2002). For example, recent analyses of nationally representative data from the State Court Processing Statistics (SCPS) program show that, compared with whites, African Americans are more likely to be preventively detained. They are also less likely to make bail, and for those who are charged with a drug offense, African Americans are more likely to have bail imposed as a condition of release. The results are similar for Hispanic defendants, although they also tend to have higher bail amounts (Demuth 2003; Demuth and Steffensmeier 2004; Cohen and Reaves 2007; Schlesinger 2007; Steiner 2009). All decisions and outcomes are less restrictive toward women than men, with the greatest gaps appearing among Hispanic defendants (Demuth and Steffensmeier 2004). Thus, racial and ethnic minority defendants are less likely to be released pretrial than are white defendants, and men are more likely to be detained than are women. The classic concern that the financial demands of bail may work to the detriment of minorities still has merit. A portion of the differential release probabilities for whites compared to African Americans and Hispanics can be explained by bail amount or the defendant’s willingness or ability to pay bail when it is offered as a release condition. The remainder, however, can be attributed to a more direct effect—differences in the likelihood of being preventively detained.
A shortcoming of these studies is that the SCPS data series does not include information on defendants’ community ties. Marital status, family and friendship networks, employment, residential stability, and other indicators that a defendant is rooted in the local area are relevant to judges’ assessments of flight risk. If racial or ethnic minorities or men show weaker community ties, this could at least partly explain their disparate pretrial release outcomes. In studies drawing on other data sets and introducing controls for community ties, the effects of race have been equivocal (Goldkamp and Gottfredson 1985; Petee 1994; Goldkamp et al. 1995; Turner and Johnson 2005). The work of Albonetti, Hauser, Hagan, and Nagel (1989), however, suggests that race may have an indirect influence on pretrial release. In their analysis of data from ten federal court districts—although the influence of marriage, employment and residence did not vary across racial groups—education and income reduced the restrictiveness of release outcomes more for white than for black defendants. Thus, the disadvantage of minority racial status may not operate alone but rather through the weight judges assign to other legally relevant factors in reaching decisions about release and conditions of release.
C. Pretrial Supervision, Risk, and Misconduct
When criminal defendants are released to the community rather than detained pending the outcome of their cases, risk of two types of misconduct becomes salient. First, the defendant may fail to appear for a scheduled court hearing. When this (p. 807) occurs, the judiciary’s ability to pursue justice is hampered, and costs associated with rescheduling and possible reapprehension of the defendant are incurred.
Second, the defendant may commit new crimes, bringing harm to victims and the community, and also redoubling economic demands on the system should the defendant be re-arrested. There is substantial variation among jurisdictions in the extent to which defendants engage in misconduct while under pretrial release. In the federal courts, failures to appear (FTA) and re-arrests are remarkably rare. VanNostrand and Keebler (2009) report that of all defendants processed through the US federal courts between October 2001 and September 2007, 3.5 percent were re-arrested for a new crime and 3.5 percent failed to appear in court. Misconduct rates in the federal system have been this low for at least the past decade (Byrne and Stowell 2007). In contrast, Cohen and Reaves’s (2007) analysis of SCPS data from 1990 through 2004 reveals an FTA rate of 23 percent and a re-arrest rate of 17 percent among cases processed in the largest counties in the United States. Rates reaching a third or more of defendants have been reported in individual local jurisdictions (Goldkamp and White 2006). The relatively lower rate of misconduct at the federal level is likely due at least in part to the greater use of pretrial detention. Presumably, the comparatively small portion of defendants released before trial in the federal court system are lower risk. Researchers, however, have yet to pursue systematic explanations of differences in pretrial misconduct across jurisdictions.
The bulk of the research on pretrial misconduct has been directed instead at understanding and predicting variations across individual defendants. The possible correlates that researchers have examined fall into several general domains; characteristics of the defendant’s current charges, criminal history variables, community ties, and demographics are the most common. The particular operationalization of each correlate varies among studies, complicating direct comparisons. Even so, a few variables emerge from the literature as largely common predictors of pretrial misconduct. Defendants who are unemployed, do not have a telephone, have previously been arrested or convicted, and who have a prior FTA are more likely to be re-arrested or miss a scheduled court appearance (Goldkamp et al. 1995; Rhodes, Hyatt, and Scheiman 1996; Maxwell 1999; Cohen and Reaves 2007; Lowenkamp, Lemke, and Latessa 2008; Siddiqi 2009; VanNostrand and Keebler 2009). Although less often examined, prior incarcerations, current substance use, and a history of serious personal and legal problems related to drug use have also been identified as predictors of misconduct (Rhodes, Hyatt, and Scheiman 1996; Lowenkamp, Lemke, and Latessa 2008; VanNostrand and Keebler 2009). The literature shows that a host of other variables, including race, age, gender, marital status, residence, and aspects of the current offense sometimes are related to re-arrest and FTA but other times are insignificant (Goldkamp et al. 1995; Rhodes, Hyatt, and Scheiman 1996; Maxwell 1999; Cohen and Reaves 2007; Lowenkamp, Lemke, and Latessa 2008; Siddiqi 2009; VanNostrand and Keebler 2009).
(p. 808) A practical application of this research has been the development of objective risk-assessment tools. Three recent studies drawing on distinct data sets illustrate the modest success of these efforts. The largest undertaking, carried out by VanNostrand and Keebler (2009), drew on records of more than 575,000 defendants processed by the federal court system between 2001 and 2007. Using logistic regression analysis, the authors identified nine “statistically significant and policy relevant predictors” of failure during pretrial release: pending charges, prior misdemeanor arrests, prior felony arrests, prior FTAs, employment status, residence status, type of substance abuse, level of current charge, and type of offense for the current charge (VanNostrand and Keebler 2009, 22). Together, these variables were able to account for less than eight percent of the variation in misconduct among defendants. When the regression model was used to create a five-level risk classification system, meaningful distinctions in misconduct rates were revealed. Defendants at the lowest risk classification failed at a rate of 2.3 percent, compared with 15.5 percent for those at the highest risk level.5
The results produced by Siddiqi (2009) and Lowenkamp, Lemke, and Latessa (2008) are remarkably similar. Lowenkamp, Lemke, and Latessa (2008) developed an eleven-point risk score based on prior FTA, prior incarceration, residential stability, employment, drug use, and drug-related problems among defendants referred to five pretrial services agencies. The correlation of risk scores with FTA (.26) and re-arrest (.24) indicate a minimal ability to explain variation in misconduct (about 6 to 7 percent), but those at the lowest risk classification were far less likely to fail to appear (2.1 percent) or be re-arrested (4.3 percent) than those at the highest risk level (33 percent for both types of misconduct).
Finally, examining more than 26,000 defendants from New York City released in 2001, Siddiqi (2009) identified some of the same predictors as VanNostrand and Keebler (2009), such as prior FTA, prior arrest, and unemployment. After eliminating additional variables on which he argued policy should not be based—race, age, borough—Siddiqi was able to explain 7 percent of the variation in rates of misconduct, which included FTA and arrest for a violent offense. Siddiqi’s (2009) risk-assessment instrument shows an ability to distinguish low-risk from high-risk cases, with defendants at the high end engaging in misconduct six times more often than those at the low end.
An important aspect of pretrial misconduct involves the type of release. Ostensibly, defendants released on their own recognizance (ROR) should pose the lowest risk. Higher-risk defendants face conditions of release—bail, supervision, and other restrictions—to encourage appearance in court and discourage criminal behavior. The available evidence, however, suggests that this system does not effectively equalize the rate of misconduct across defendants. Block (2005) reports that felony defendants in California released on surety bond failed to appear less often (20.1 percent) than those released on their own recognizance or on conditional release (31.8 percent). Using a more sophisticated analysis that controlled for other (p. 809) variables, Cohen and Reaves (2007) also found FTA rates to be lower for surety, deposit, property, and full cash bond than for ROR. For risk of re-arrest, however, all types of release were statistically indistinguishable except for unsecured bond and emergency release, which were both higher. Intriguingly, VanNostrand and Keebler (2009) found that federal defendants who were required to meet certain supervision conditions—drug testing, drug treatment, electronic monitoring, and housing restrictions—engaged in misconduct at higher rates than defendants for whom release was not contingent on supervision.
Moving beyond the type of release, some researchers have examined the effect of particular conditions of release on misconduct. The largest body of work has concentrated on drug testing as a condition of pretrial release. Emerging in the 1980s, the practice of monitoring defendants released pending trial for drug use was instigated by concerns about a high level of substance use among arrestees (National Institute of Justice 2003) and a general trend toward control and surveillance for offenders in the community (Cullen, Wright, and Applegate 1996). Based on a 2001 national survey, Clark and Henry (2003) report that 77 percent of pretrial services agencies currently conduct drug testing on defendants released under their supervision.
The research literature, however, suggests that drug testing may not be an efficient use of resources (Belenko, Mara-Drita, and McElroy 1992). Experimental studies comparing defendants released with drug testing as a condition versus those without such a condition tend to show equivalent rates of re-arrest and FTA (Cullen, Wright, and Applegate 1996). Moreover, knowing which defendants have used drugs and which have tested negative for substance use appears to be of little value to pretrial supervision. Rhodes and his colleagues (1996) re-analyzed data from eight prior studies. Although they found that positive tests for two individual drugs were related to misconduct—heroin for re-arrest and cocaine for FTA—they concluded that “no evidence supports the general assertion that arrestees who test positive pose greater risks of pretrial misconduct than arrestees who test negative” (Rhodes, Hyatt, Scheiman; 1996, 340). Drug test results add little to our ability to predict FTA or re-arrest once other variables such as criminal history and community ties have been considered.
Beyond drug testing, relatively little attention has been devoted to the content of pretrial supervision. Clark and Henry’s (2003) survey shows what components are common. Pretrial services programs conduct interviews with defendants to assess their release risk. Nationally, 95 percent of programs report trying to verify defendants’ information, but Siddiqi’s (2009) study raises questions about the success of these efforts—only 28 percent of defendants’ information about community ties was verified by pretrial services personnel in his New York City study. Nearly all pretrial services programs supervise defendants through telephone or in-person contacts, more than eight in ten refer defendants to substance abuse treatment or mental health services, and nearly 80 percent attempt to contact defendants who fail to appear in court (Clark and Henry 2003).
(p. 810) Data revealing the extent to which these practices affect pretrial misconduct for the most part do not exist. A series of analyses reported by Goldkamp and White (2006) comprise a notable exception. In separate experiments in Philadelphia, the researchers assessed the effect of enhanced assistance from pretrial services personnel at the initial court appearance, contact after arraignment, more frequent contact with defendants, reminders about upcoming court dates, and following up on defendants who missed appointments. The results revealed no reduction in misconduct for the experimental groups who were assigned to receive these services compared to the control groups who were not. The authors note, however, that implementation of the enhanced pretrial supervision services often fell far short. Some results suggest that when defendants did receive the assigned service, outcomes improved. For example, when pretrial services staff were able to reach defendants by telephone to remind them of an upcoming appointment, rates of re-arrest and FTA were cut by one-third or more. Unfortunately, the number of defendants involved in these analyses was small, and the degree of implementation was not randomly assigned, raising the possibility that something other than the supervision component affected misconduct levels.
IV. Contemporary Jail Issues
American Jails before 1975 were not especially nice places in which to live or work. Beginning in the mid-1970s, new types of jails were established. Whether the new jails achieved their aims is not entirely clear. Whether in old- or new-style jails, many inmates have difficulty adapting. This may in part be because many are afflicted by pre-existing mental health conditions.
A. The New Generation Jail Philosophy
One of the most notable twentieth-century innovations in jail design and management was initiated in the 1970s. The US Federal Bureau of Prisons embarked on an effort to design jails that would better meet basic inmate needs—such as privacy and security—and encourage more pro-social behavior (Gettinger 1984). Traditionally, jail inmates were held in open barracks or in cells arranged linearly along a corridor (Wener, Frazier, and Farbstein 1985). Surveillance by officers occurred intermittently and remotely because they were separated from the inmates by physical barriers.
By contrast, the new generation architectural design placed inmates into self-contained living units that were triangular or wedge-shaped. In combination with the architectural layout, stationing officers within the unit allowed them a direct line of sight into all areas of the unit at all times. The furnishings in new generation (p. 811) living units also differed. Rather than “vandal proof” stainless steel and concrete fixtures that are permanently affixed, the pods included carpeting, porcelain lavatories, moveable furniture that may be padded or plastic, and other “soft” fixtures.
The physical features lend themselves to expression of a unique inmate management approach, which also distinguishes new generation jails from traditional facilities. Correctional officers’ work in traditional facilities has been characterized as “fragmented, routinized, and menial” or as “bureaucratic chores that require little or no judgment, initiative, or skill on the part of the officer” (Zupan and Menke 1988, 615). In such units, officers are often relegated to patrolling corridors, conducting counts, escorting inmates from one area to another, and attempting to maintain order. Personal security is obtained by physical separation from inmates, and authority is frequently shared with inmates through tacit agreements where guards ignore minor rule violations in exchange for inmates’ general compliance (Zupan 1991; see also Sykes 1958). Direct supervision, by contrast, requires well-developed interpersonal skills, creativity in managing inmates, and independence. Zupan (1991) has identified several dimensions of officer behavior essential to effective direct supervision, including proactively addressing conflicts, building rapport, treating all inmates fairly, balancing discretion and consistency, and actively engaging with inmates.
The first new Bureau of Prisons facilities, located in San Diego and New York, opened in 1974, and a third metropolitan correctional center opened in Chicago in 1975 (Nelson and Davis 1995). Because the new facilities were a radical departure from traditional jails, observers initially had reservations about whether they could be operated safely (Wener 2005). Following early reports of reduced violence, graffiti, vandalism, and other incidents in the federal facilities (e.g., Wener and Olsen 1980) and especially in New York City’s redesigned version of “The Tombs,” new generation jails were embraced more widely (Wener 2005). In a sample drawn in 1999, twenty-five years after the first new generation jails opened, more than one in five medium and large jails reported that they operate a new generation facility (Tartaro 2002b).
Much of the impetus to adopt new generation jail principles arose from the promise of reduced inmate misbehavior. The literature, however, is less than clear that this promise has been fulfilled. Research suggests that inmates held in new generation jails feel satisfied with the facilities (Wener and Olsen 1980; Wener, Frazier, and Farbstein 1985), experience less stress and feel safer (Zupan and Stohr-Gillmore 1988; Zupan 1991; Williams, Rodeheaver, and Huggins 1999), and may experience lower rates of recidivism following release (Applegate, Surette, and McCarthy 1999) than inmates housed in traditional jails. The evidence on inmate misbehavior while incarcerated is mixed but suggests that rates of at least some types of infractions may be lower in new generation than in traditional jails (Wener and Olsen 1980; Bayens, Williams, and Smykla 1997; Senese 1997; Williams, Rodeheaver, and Huggins 1999; cf. Keller and Wang 2005).
(p. 812) Whether new generation jails provide a superior work experience for jail officers also is unclear. Among the evidence for positive effects, officers in new generation jails tend to see the facility as cleaner, less crowded, having fresher air, and being more temperate (Farbstein and Wener 1989; Williams, Rodeheaver, and Huggins 1999). Some studies also suggest that new generation jail officers are more satisfied with their jobs, believe there is greater opportunity for advancement, think the staff has better control of the unit, and see the facility as safer (Houston, Gibbons, and Jones 1988; Zupan and Menke 1988; Farbstein and Wener 1989; Zupan 1991; Williams, Rodeheaver, and Huggins 1999). Other assessments, however, have found that staff are no more satisfied with their jobs, do not feel any safer, are no less stressed, and are no different from staff in linear jails on several dimensions of perceived job enrichment (Houston, Gibbons, and Jones 1988; Zupan and Menke 1988; Zupan 1991; Williams, Rodeheaver, and Huggins 1999; Yocum et al. 2006; Applegate and Paoline 2007).
Two factors suggest caution in interpreting the results of evaluations of new generation jails. First, the research designs employed have been relatively weak. The earliest evaluations assessed inmates and staff in new generation jails with no basis for comparison. More recent studies have used pre/post designs or have gathered data from a very small number of traditional jails to compare with data from a very small number of new generation facilities. The risk is that variables other than new generation design may account for observed differences; equally problematic, true effects of new generation innovations may be obscured. Second, evidence suggests that new generation jails have only partially implemented the physical and supervisory dimensions of the philosophy. In two studies of new generation jails, Tartaro (2002a, 2006) found considerable variation in use of soft furnishings and in the extent to which officers were posted within the inmate living areas. Incomplete implementation might explain the evidence of less than optimal results for inmates and staff.
B. Mental Health and Adjustment to Jail
The alternative design and operation of new generation jails raises the issue of how the institution affects inmates. A large body of literature exists regarding the impact of long-term incarceration in prison (see, for example, Johnson and Toch 1982; Stohr and Hemmens 2004). The adaptive response of individuals to comparatively shorter incarceration in jails, however, has received far less empirical and theoretical attention. Even so, information can be drawn together to paint a portrait of the jail experience.
More than twenty-five years ago, Gibbs (1982, 99) observed that detention in jail is “unusually disruptive, debilitating, and even traumatic.” He identified four areas where jail inmates experience problems. First, Gibbs argued, inmates experience entry shock—those booked for the first time and those who have been to jail before are struck by the abrupt and dramatic change in their status from free citizens on the (p. 813) street to jail inmates. The second problem area, maintaining outside links, arises from a need to feel that one’s connections to the outside world have not been completely severed. Family and friends are important sources of emotional as well as tangible support. Third, Gibbs noted that concerns about stability and safety grow out of the tremendous uncertainty that accompanies detention in jail. Jail inmates often have little information about how long they may be in jail, the legal status of their case, the competence of their attorney, whether they will be able to secure release on bond, and many other aspects of their situation over which they have virtually no control. Their physical safety may also be threatened as they are thrust into close contact with other inmates who are also stressed and may be violent. Finally, Gibbs (1982, 101) suggested that inactivity is a problem for inmates, noting that “jails are notoriously boring places.”
Recent data illustrate that signs of distress are highly prevalent among jail inmates. Drawing on data collected in 2002 from a nationally representative sample, James and Glaze (2006) report that 64 percent of jail inmates had a recent history of mental health problems or had symptoms of a mental disorder. The most common symptoms were for a mania disorder—found among more than half of the inmates surveyed—but symptoms of depression and psychosis were also reported by more than 25 percent of local jail inmates. The survey was not designed to result in clinical diagnoses of mental illnesses, and estimates of the prevalence of serious mental illness among incarcerated populations are much lower (Abram and Teplin 1991). Still, mental health problems are found at markedly higher rates among jail inmates than among the general population (Lindquist and Lindquist 1997; James and Glaze 2006), and jail administrators assert that mentally ill inmates pose significant operational challenges (Borum and Rand 2000).
Jail inmates also manifest troubling levels of physical signs of psychological distress. Some authors suggest that suicidal and self-injurious behaviors are symptoms of an underlying psychological disorder, while others argue that they result from inmates’ efforts to manipulate their environment (Thomas et al. 2006), views that are also held by mental health professionals in corrections (DeHart, Smith, and Kaminski 2009). In either case, inmates’ psychological or environmental resources are outstripped by their personal needs in jail. In 2002 nearly one-third of deaths of inmates in US jails were suicides, a rate of 47 per 100,000 inmates. The situation has improved considerably—in 1983 the suicide rate was 129 per 100,000 and accounted for 56 percent of jail inmate deaths. Even so, the jail suicide rate for 2002 was three times the rate found in state prisons and nearly three times the rate of suicides among the general population (Mumola 2005). Although national data on self-injury are not available and estimates typically suggest that less than 5 percent of inmates intentionally physically harm themselves (Young, Justice, and Erdberg 2006), self-injury among inmates is gaining recognition as a serious problem in correctional institutions. These intentional injuries can include anything from cutting, biting, and burning oneself to swallowing harmful objects (DeHart, Smith, and Kaminski 2009).
(p. 814) The observation of prevalence rates alone cannot explain why so many jail inmates show symptoms of mental illness or distress. It has been suggested that the high rates of mental health problems found among jail inmates reflect pre-existing conditions among the types of people who are arrested and detained—an importation model. There appears to be some validity to this position. People with mental illness, drug dependence, and other deficits may be more likely to come to the attention of the police, to be arrested, and to remain in jail (Irwin 1985; Lamb and Weinberger 1998; Cox et al. 2001). The widespread efforts to divert nonviolent mentally ill offenders, particularly those who also suffer from substance dependence, prior to or immediately after booking into jail, underscores that psychological deficits exist for many offenders prior to incarceration. To date, the research on diversion from jail into the mental health system has revealed marginal success (Steadman and Naples 2005). Improved quality of services and coordination between the mental health and criminal justice systems, however, show promise for reducing economic costs and recidivism by directing individuals toward more appropriate avenues of care (Lamberti et al. 2001; Mire, Forsyth, and Hanser 2008).
The mental health issues revealed among jail inmates are not solely due to pre-existing conditions. Two findings from a small but telling set of studies suggest that institutionalization also contributes to mental health problems—the experience of going to jail has an independent effect on levels of psychological distress. First, several dimensions of mental distress symptoms increase following admission to jail. Gibbs (1987) and Lindquist and Lindquist (1997) present data showing that symptoms of depression, anxiety, psychoticism, somatization, general distress, and other mental disturbances are consistently higher after a person is in jail than they are for the period immediately preceding incarceration. Second, symptoms of a mental health disorder increase when inmates’ needs exceed the supply of resources available in jail to meet those needs (Gibbs 1991; Lindquist and Lindquist 1997). Thus, the jail environment itself plays a role in the extent to which inmates experience mental health problems.
Some detainees do not find being in jail vastly stressful. Fleisher (1995) observed that the most marginalized street criminals in his ethnographic study frequently embraced going to jail as a convenient way to get access to needed housing, medical, and other services. Even though the jail offers something of a sanctuary for these offenders, the reliance on jail for support serves to maintain and exacerbate their separation from supportive social networks. Thus, while these street-level offenders may find jail to be a useful resource for meeting immediate needs, it provides a poor long-term solution.
Maintaining contact with people in the outside world can insulate inmates against the psychological distress of being arrested and held in jail. Families provide resources, information about life on the outside, and encouragement to participate in rehabilitative services (Hairston 1988). Inmates who are not visited by their families show greater feelings of loneliness, isolation, guilt, anger, and despair (Gordon and McConnell 1999; Wooldredge 1999). In addition to the ability of family members to (p. 815) assist inmates with financial, legal, employment, and other functional challenges, maintaining connections to family, especially to spouses and children, is among the most important concerns for recently incarcerated men and women (Weisheit and Klofas 1990; Hairston 1991). For inmates who are not released pretrial or are sentenced to jail, visitation is an important avenue for maintaining connections. Researchers have found, however, that many jails are hesitant to make information about visitation procedures available, and empirical evidence suggests that some jails’ practices and policies impede inmate-family connections (Sturges 2002; Arditti 2003; Hairston 2004; Sturges and Hardesty 2005; Sitren et al. 2009).
V. Policy Implications and Future Research
The issues reviewed above suggest some new directions for policies on pretrial release and jails. They also reveal areas where additional research is needed. Below, four policy recommendations and several high-priority research issues are outlined.
A. Policy Recommendations
First, judges, pretrial services personnel, and other key actors should reconsider whether high rates of pretrial detention at the federal level are necessary. Overall release rates in the federal court system are 20 percentage points lower than in the state courts, and use of preventive detention is five times higher. Officials should look closely at whether the increasingly restrictive policies that led to this situation (Byrne and Stowell 2007) are necessary to secure community safety and the appearance of defendants at trial.
Second, drug testing should be eliminated as a component of pretrial release. Once other factors are taken into consideration, positive drug tests do not add to our ability to predict misconduct. Some might suggest that what is needed are better tests. Urinalysis, probably the most common method of testing pretrial releasees for drug use, cannot distinguish between one-time or occasional use versus dependence. It is the latter that appears to be the more important consideration (Lowenkamp et al. 2008). Better testing, however, is prohibitively expensive. Moreover, self-reported drug use is at least as good a predictor of misconduct as are tests, is less costly, and can be used to produce a detailed profile of current and past use and dependence (Belenko, Mara-Drita, and McElroy 1992). Understanding each defendant’s pattern of drug and alcohol use could help to shift pretrial supervision from merely monitoring or surveillance of releasees to planning reformative interventions.
(p. 816) Third, jail planners and administrators should seek ways better to meet the psychological needs of inmates and should coordinate more fully with mental health providers for inmates with serious psychological problems. Some readers may balk at the suggestion that jails should be more supportive: Should they not be punitive? Several considerations counter this argument. Three in five jail inmates have not been convicted of a crime—they do not yet legally deserve punishment. Jail environments that meet inmates’ needs can reduce maladaptive behavior (Gettinger 1984). Rates of suicide and self-injury could decline, and the research on new generation jails suggests that inmate misconduct might be reduced while realizing additional benefits for jail officers and facilities (Wener 2006). Further, more austere jail facilities do not result in lower recidivism once inmates are released (Applegate, Surette, and McCarthy 1999). Regarding severely mentally ill persons brought to jail, more concerted efforts to secure high-quality treatment could help break the cycle of arrest, temporary improvement in psychological functioning, decompensation, and re-arrest (Cox et al. 2001; Mire, Forsyth, and Hanser 2008).
Fourth, jails should seek ways to facilitate supportive and pro-social relationships between inmates and those outside jail. Some changes would be relatively simple, such as making visitation policies readily available to inmates and to their friends and family members. Other changes may require more effort, resources, and coordination with outside agencies. Although most of the recent attention on inmate re-entry has focused on prisons, scholars, practitioners, and policymakers have also begun to recognize that most jail inmates will return to the community (Solomon et al. 2008). Maintaining existing links with the outside world, forging new ties, and addressing the host of deficits faced by many jail inmates promise to ease this transition.
B. Future Research
A number of aspects of jails and pretrial release are ripe for additional research. Greater empirical analyses would not only enhance basic understanding of these institutions and the processes associated with them, but it would also result in further recommendations for criminal justice policy.
Recent work that has examined each decision point in the process of pretrial release—preventive detention, release on recognizance, setting of bail or other release conditions, setting of bail amount, and ultimately whether the defendant is released—adds substantially to our understanding of cumulative effects and the points at which the defendant’s race matters (Demuth 2003; Demuth and Steffensmeier 2004). It would now be useful to examine narrower issues in more detail. Scholars should assess the determinants of who makes bail when it is set as a condition of release. In particular, the assumption that defendants who are held on bail cannot afford to pay should be subjected to empirical investigation. The importance of this work is highlighted by recent calls for expanded use of surety bond (Block (p. 817) 2005) and by the trend toward greater reliance on financial requirements as a condition of release (Cohen and Reaves 2007).
Other studies should determine the extent to which dimensions of community ties can account for racial, ethnic, and gender differences in release probabilities (Cohen and Reaves 2007). The salience of this work is twofold. First, it would reveal the extent to which disparities can be explained by legally relevant variables. Second, if community ties are related to the greater likelihood of pretrial detention among minorities and men, there is still the question of whether these legal factors are appropriate and necessary considerations. If they do not add substantially to predicting valid outcome concerns—failure to appear and re-arrest—an argument could be made that using them to make release decisions amounts to de facto discrimination.
A related line of research should examine pretrial misconduct. Aggregate-level studies seeking to explain differential rates of failure to appear and re-arrest across jurisdictions could be very enlightening. At the individual level, scholars should continue to seek better predictors of misconduct. As noted, the existing efforts have resulted in only a modest ability to classify defendants by risk. More rigorous experiments on the effects of supervision, such as those carried out by Goldkamp and White (2006), also should be included in this line of work.
An important part of the agenda for future research on jails would include efforts to understand their dramatic expansion since the early 1980s. Earlier in this essay, explanations for the high rate of incarceration in the United States were discussed. Jails, however, merit separate consideration. Several characteristics distinguish jails from prisons in potentially relevant ways. Most jails are locally administered; as a whole, they admit and release far more people each year; at any one time, they house less than half as many inmates; most of their inmates are held for a much shorter time; and more than half of their inmates are being held pretrial. Studies that look at how jails “fit” into the context of criminal justice operations and culture in local jurisdictions may be useful to understanding the size of the local incarceration enterprise (Welsh 1995; Davis et al. 2004). Taking a broader view, however, may be necessary to understand fully why jail growth over the past several decades was so dramatic and widespread.
Traditionally, jails have been stressful and dangerous for staff and inmates alike. New generation jail designs and operations hold promise for alleviating many of those problems for officers and inmates. The existing research shows equivocal results about the effects of new generation jails, but also reveals that principles of this innovation often have been only partially implemented. The available research, however, does not show whether fidelity of implementation conditions the effect of new generation jails, nor does it reveal which elements of new generation designs and operations are most critical. Researchers should design and carry out more rigorous analyses to address these issues.
Additional studies should be conducted on the effects of congruence between inmate needs and environmental resources to meet those needs. The existing work (p. 818) in this area is somewhat dated and is based on a single methodological approach (Gibbs 1991; Lindquist and Lindquist 1997). Scholars need to expand this work to encompass different jail environments, different types of inmates, and different ways of assessing inmates’ concerns. How jails can be structured and operated to alleviate problems is a broad concern and fits well into the contemporary emphasis on offender re-entry. An eye should be turned toward assessing what approaches help to relieve deficits and develop competencies for successful re-entry to the community.
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(1) . The theoretical perspectives discussed here were derived from consideration of incarceration rates, combining prisons and jails. Jails are distinct in ways that may be relevant and may merit separate theoretical explanations for jail population growth.
(2) . Some jurisdictions have returned to billing sentenced jail inmates for incarceration. Klamath County in Oregon, for example, began charging $60 per day in 2003, though other jurisdictions typically charge lower fees (Loew 2009).
(3) . Although this federal law is well known, earlier legislation had already marked the turn toward concerns about danger. In 1970 Washington, DC, had passed a preventive detention law, and by 1984 more than half of the states had followed this lead (Walker 1993; also see Goldkamp 1985).
(4) . Most scholars imply that defendants held on bail are unable to pay the amount necessary to secure their release. While this interpretation likely is accurate in many cases, it is also possible that some defendants could “make bail” but choose not to do so. Additional data would be necessary to disentangle willingness to meet financial release conditions from financial ability.
(5) . The authors do not report the number of cases included in the logistic regression analysis, but risk classifications are reported for 172,515 of the 575,178 cases in the study.