Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
[00:00:35] Speaker B: Hello everybody. Welcome back to the Proof Over Precedent podcast as part of the Access to Justice Lab. My Name is Strong MA, a current 2L at Harvard Law School, and I'll be talking to lan Parch about her recent blog post on pretrial detention. Lan, do you want to introduce yourself?
[00:00:51] Speaker C: Thank you so much, Strong. I'm so excited to be here on the podcast today. I'm talking about the research that I've been able to do over the past few weeks.
My name is Leanne. I'm a 1L at Harvard Law School and a member of the Access to Justice Lab.
And over the last few weeks I have kind of been continuing researching my topic from my previous blog posts and podcasts on cost of pretrial detention.
And for the second podcast, I really wanted to investigate, does pretrial detention work?
I was really curious about this war on drugs, tough on crime narrative that can be traced back to Richard Nixon, who kind of started the rhetoric around the war and drugs and the rise through the 1970s and Reagan's expansion of the criminal justice system, and I mean, even continues on to Bill Clinton and Barack Obama and this narrative of being tough on crime that kind of periodically captures American politics and American psyche, with it just being so prevalent in our political discussion. I wanted to look at the data and see, okay, does this tough on crime narrative, does it really work? And so that's kind of what I was trying to investigate for this podcast.
[00:02:16] Speaker B: Yeah, that sounds super interesting. I think just like this element of the cycles of tough on crime narrative going into reform and back to tough on crime, it just seems to be somewhat prevalent pattern in American politics. And it's something I actually noticed for my previous blog post actually on California and the failure of bail reform. And part of that I attributed to this increasing sort of tough on crime desire of the American public, or at least the California public that seems to have taken hold, especially after Covid 100%.
[00:02:54] Speaker C: And yes, I really loved your first blog post and that sparked a lot of ideas and some of the conversations that we've been able to have offline and so we'll be coming back, I think, to California Prop 25 a couple times over this podcast because I think it just ties in super well to what we're discussing today with this prevalence of this narrative.
And does this really work? Something that was really interesting to me when I was researching My blog post one was that since the 1970s, our incarcerated population has tripled the growth and the increase in the number of people that are detained are largely people that are held pretrial.
That has been the largest area of growth. And so this means that people who have not been convicted of a crime, who are still innocent under the law, are the ones who have greatly contributed to this large increase in the incarcerated population in the United States. And so that was just something that I found really interesting and I wanted to investigate why and why this really captured the narrative.
[00:04:11] Speaker B: Right. For sure. I mean, like, that's the fact that it's largely the pre trial population that's contributed to this growth really matters. Right. Because that means you need like quite a good justification for keeping that many people detained, especially when the increasing population means incredibly increasing costs to local and state governments, largely local governments. So, like, the amount of resources we spend on this, it does raise the very sort of natural, reflexive question of why do we even do this and if it doesn't work, then how should we reform it?
[00:04:50] Speaker C: Absolutely, yeah.
[00:04:53] Speaker B: And so I'd love to just ask, sort of in your research, what did you see when people sort of tried to justify pretrial detention?
[00:05:00] Speaker C: Yeah, so I think kind of the main, when people talk about it on the news, but also when judges decide to detain an individual pretrial, the primary justification that they give is deterrence.
Deterrence here is a little bit of a misnomer because pretrial incarceration, like to a large degree, doesn't operate based on deterrence, more of an incapacitation function. Because when you are locked up, there is obviously some barriers to you failing to appear in court for your court date or committing new crime.
And so those are kind of the two drivers of the kind of justification for pretrial detention is people are justified being held pretrial in order to one decrease kind of the likelihood that they may miss their court date or the likelihood that they'll commit new criminal activity while waiting for that court date. And so when you're incapacitated, obviously you will show up to your court date and there's going to be a very low likelihood of committing new criminal activity, at least in the larger public.
And so deterrence is kind of the big language that surrounds it. But the issue with kind of this language of deterrence, you might hear it and be like, oh, okay, that makes sense. We don't want people to miss their court date. We don't want people to commit new criminal activity.
But all of this has a cost, which we talked about a lot in my previous podcast, so we won't rehash that all today.
Some of the studies that I was able to look at while researching this suggested that pretrial detention increased the likelihood that someone would be charged with a new felony within 18 months post release.
And the authors of this 2013 study that you can find in my blog posts argued that this increase in likelihood of rearrest is largely due to the fact that incarceration can cut these individuals off from their attachments to the real world, like their jobs. As we talked about a lot in the last podcast, people often lose their jobs while they're held pretrial and their other social relationships. And so this severance and this kind of harsh traumatic experience of arrest and detention can largely increase kind of these criminogenic effects that increase the likelihood of someone re offending.
And so Doobie, golden and Yang, this is from the study that I referenced a lot in my first blog post, but also found in their research that initially increases the likelihood of new criminal activity prior to a case disposition by 18.9 percentage points, but it also decreases the likelihood of new criminal activity following case disposition by 12.1 percentage point. And so if you take the whole two year period after the bail hearing, there's really no overall effect on your criminal activity. And so really, despite the large cost that this is having on society, the evidence suggests that pretrial detention does not lower the rate of crime.
It doesn't really have a deterrence effect on that level of crime either.
[00:08:37] Speaker B: Yeah, I think that's just incredibly interesting. Right. Because there is this natural reaction that obviously if you incapacitate more offenders that there would be less of a chance that, that during the disposition of the case, during the course of the case, there will be less likelihood of new criminal activity. But I think what this study is so interesting and so illuminative is that just the negative effects of incarceration, if you just look at it sort of on a broader, more holistic view, that has negative effects and it sort of all equalizes out. And I think that's sort of one of the most important aspects of this blog post and one I found really interesting.
So, yeah, that's on the Sort of new criminal activity, which is obviously a very big concern. But what about sort of just like the failure to appear aspect of it as well?
[00:09:32] Speaker C: Yeah, so the same study by Dubie, golden and Yang, they found that pretrial release increased the possibility of failure to appear by 15.6 percentage points. And so, yes, pretrial detention does reduce the likelihood that someone is going to miss their court date.
And so that can largely be a statistic that proponents of pretrial detention rely on. But this phrase failure to appear, I think it kind of implies some nefarious motives. You know, you get the image of, like, someone dodging town or just blatantly avoiding showing up to court. But the reality is often a lot more mundane, especially since what we're talking about are kind of smaller petty crimes or misdemeanors. A lot of people don't make their court date because of lack of transportation or they have work and don't want to miss work for the fear that they might lose their job or they don't want to tell their boss that they have a court hearing. They might have children that they can't leave alone. And also there is just like. Like the reality that when someone is told this is their court date while they're incarcerated, which is obviously a very traumatic experience, there can be confusion around that scheduling and people might get the information wrong. And this is especially harmful for populations of people experiencing homelessness or mental illness who might struggle a little bit more with making their appointments.
[00:11:13] Speaker B: Yeah, I think that's something that came up a lot when I was looking into why California was trying to do bail reform too, that, like, you know, one of the main reasons for money bail is to incentivize people to not skip town. Right. Like, we assume that failures to appear are voluntary, are based on a motive to dodge accountability. And so therefore having money bail is the cash incentive, as it were, to return.
But, you know, when you look at, honestly, like, most of the reasons people fail to appear in Mr. Court, as you've said, it's a lot of times much more based on the situation at hand rather than sort of internal disposition to, you know, avoid accountability.
[00:11:57] Speaker C: Yeah, absolutely. And I think, like something that is really salient around that point, that a lot of times, like the reasons that people miss their court dates are quite mundane, is pretrial detention is incredibly costly. It's costing taxpayers about $16 billion, as we kind of referenced in that previous podcast. And so while pre child detention does limit this failure to appear, there's actually a lot more Cost Effective solutions. And one thing that I found in my research, which was really exciting to me, was this narrative from. From Tulsa county in Oklahoma, which is my hometown. And so it's always fun to kind of read about things that are happening back home. But Tulsa county faced this big budget crisis due to their rising incarceration dates.
And about 14% of people who were detained in Tulsa county were there for failure to appear. And this was costing the city about 1.2 million in costs. And so in order to try to reduce failure to appear, Tulsa partnered with this vendor called uptrust, which was basically just sending people reminders of their court date and giving them access to transportation. Like, this is a bus route that will get you to where you need to go and connecting clients with like, a case manager that they could use to maybe help arrange childcare. But largely what was effective was they were just sending people messages.
And obviously there's some barriers to this. A lot of people who are facing charges don't have access to cell ph. And so that is obviously a barrier. But for the people that did have access to electronics, this was really, really popular and really helped the county. They didn't collect any quantitative data. But one stakeholder noted that before implementing this, like, messaging program, about 50% of clients didn't show, but now it was reduced about 15%.
And defendants really liked it. It really helped them. They appreciated the reminders and the services they were able to access through the app. And research outside of this study actually shows that these text reminders or phone call reminders can increase appearance rates by as much as 42%.
And this is really great because text reminders can cost as little as 3 cents per court date. And so this is far more cost effective than incarcerating someone for an indefinite period just to keep them from missing their court date. This firm, ideas42, which is a very cleverly named research organization, estimated that the government saves about $2,674 in costs. And so there, by implementing this for, like, each person that instead of arresting, booking, jailing a person, paying attorneys, and implementing pretrial supervision, that over $2,000 was saved by just sending people text reminders. And so this would kind of equate that over a year of misdemeanor cases in an average sized state, they estimate that this provide a social benefit of about $75 million.
[00:15:32] Speaker B: That is a big number, for sure.
A little bit incomprehensible to the average, but I think that is just to indicate the cost of detention. And then in comparison to how effective it really is. Right. I think that's a super compelling reason to really look hard at these reforms and consider them. I feel like there was just a lot of pushback already that the standard response is that, yes, it may save money. There's this risk to public safety that's hard to get away from. And so one thing I really liked about your blog post was that, you know, just trying to challenge that conception with data and research. Can you talk a little bit more about how we might start thinking about the risks?
[00:16:13] Speaker C: Yeah, absolutely. I think that's a very kind of intuitive counterpoint that comes up when you're thinking about this. You're like, okay, people, you know, well, maybe there's a more cost effective way, but don't we want people who are actually guilty of violent crimes to like be held off the street? And that's, that's like, I think a very human fear that arises whenever we talk about kind of criminal justice reform. The Prison Policy Institute actually kind of did a roundup of things that have been happening throughout the country and the effect of pretrial reform on public safety in about 13 jurisdictions and highlighted a couple examples where it shows that releasing pretrial did not negatively impact public safety. For example, in 2017, New Jersey passed a law implementing kind of a risk informed approach to pretrial release and virtually eliminated cash bail.
And the pre trial population decreased 50% over two years. And violent crime in New Jersey actually decreased. Homicide fell by over 30% and other crimes also they saw a decrease within the state. And so this was something that really worked for a while in New Jersey. And but I know that this is something that maybe has been frustrated by the increasing crime rates during the COVID 19 pandemic and is something that I think you referenced a lot in your first blog post is how bail reform failed in California because people really didn't believe that there was going to be a net neutral or a positive effect on public safety. I think it was kind of the opposite. And so I would love to maybe hear more about why you think that proposal failed and kind of what were the fears surrounding reform in California?
[00:18:15] Speaker B: Yeah, for sure. I think the California example is a really interesting one because that fear of the negative effect to public safety was one of the main strands of it. For sure. You could see a lot of the bail bond industry organizations that were against that reform sort of spouting those very similar narratives that it will release criminals onto the streets, that they're advocating for risk to public safety for less safe communities. And then the California example is interesting because alongside that, that first narrative was the second narrative that for context, Prop 25 in California was attempting to implement cashless bail using algorithms to determine a public safety risk.
And so just the use of algorithms, a handful of human rights organizations actually chimed in on the side of the bail bonds organizations because they felt like using algorithms to determine risk would be fundamentally unfair, had a potential for bias and it just like made people uncomfortable about having sort of a non human decision maker in matters of criminal justice.
So it was like that almost like one, two punch of public safety risk. And also, even if it wasn't a public safety risk, it might be unfair because there's like algorithms involved.
[00:19:34] Speaker C: But I think as a very interesting.
[00:19:37] Speaker B: Yeah, yeah, totally. And that's sort of what really drew me to that example. And I think as it relates to your blog too, it's one of those things where, you know, perhaps there are definitely alternatives to increasing pre trial incarceration.
The fact that we have systems to try to do it without the human judgment involved shows that we can do a lot to figure out the actual efficacy of holding people before their case proceeds.
And if we do it through algorithm based reforms, there's a lot more that's needed to actually judge it on its merits, on its efficacy on a research based level as opposed to judging it just because there's this narrative about it being unsafe or this narrative about it being unfair.
[00:20:25] Speaker C: Yeah, I think that's so interesting. Kind of that public safety narrative that we've already expanded on. But also this inversion to algorithm narrative as, as well. Well, it's just, I think something that's really been clear in the research that we've both been doing is just the data tells a different story. Yeah, I think that's a very interesting challenge that we face kind of as aspiring reformers or lawyers and entering this kind of system is how do we adequately use data to inform our decision making and then also communicate that data in a way where it resonates with the people that we're trying to communicate it to.
Because you know, at the end of the day I think a lot of fears are very human. And so I think it's. Yeah, it's just a very interesting thing that at least while I was doing research on this topic I was really grappling with because for example, a 2023 poll showed that 58% of Americans think the US criminal justice system is not tough enough on its handling of crime.
But when asked which should be the greater priority for the US criminal justice system, 55% of Americans favored strengthening law and order through more police and greater enforcement of the law over reforming court and police practices, which, I mean, just shows the strength of kind of this tough on crime narrative that continues to be so pervasive in our politics and. Yeah, just our collective consciousness.
[00:22:09] Speaker B: Yeah, I think that's like a really important point to make and it's one of the most difficult challenges about being a reformer. Right. Because you can get a lot of data and do a lot of great research, but it's often sort of either ignored or sort of undercut by just this very, very, I think, natural phenomenon of people see rising crime rates. They shortcut that in that mind to not having enough law, not having enough enforcement. And there's not a lot of pushback on that because, you know, prisoners rights, defendant rights, they don't. Defendants don't have the most political capital to put it lightly. So it's very easy to find someone to blame and put it on just that and say we need more law enforce because it's bad people out there sort of getting to these results rather than trying to figure out what the most effective solution is.
[00:23:03] Speaker C: Exactly. And I mean, with a large number of kind of our prosecutors being elected, it's very, I think, predictable to assume that especially when people are wanting to seek reelection, no one wants to implement reform on the off chance that maybe crime does increase, a tick or horrendous thing does happen.
And so we continue this cycle of not looking at the data and continuing to be fearful of reform in order to kind of keep the status quo and stop the worst thing from happening. In fact, this whole system is having such an incredibly effect on defendants and everyone touched by the criminal justice system and also society at large. I mean, higher incarceration rates, as we talked about last time, leads to higher poverty rates, leads to less money in society. And so I think it's just an interesting question to continue to wrestle with is how do we get the data out there and publicize the information to start to change kind of that narrative and, and rally people around kind of some common sense reform that the data shows that we can achieve.
[00:24:24] Speaker B: Yeah. And I think that's sort of the project of this blog post and obviously a very much continuing one that a lot of people are going to have to subscribe onto. But I think the work you did on this post and the work we've talked about has just been incredible. So I really appreciate you spending some time to talk with me about it and I hope to see more yes.
[00:24:45] Speaker C: Thank you so much. Strong. I really enjoyed our conversation and just being able to kick around ideas and talk about these developments, and so thank you for having me. It's been so much fun.
[00:24:56] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:25:22] Speaker C: And over the last few weeks, I have kind of been continuing researching my topic from my previous blog posts and podcasts on cost of pretrial detention.
And for the second podcast, I really wanted to investigate gate. Does pretrial detention work.
