This article originally appeared on the Huffington Post on March 28, 2014.
By Tim Murray, Pretrial Justice Institute; Retired U.S. Marine & Melissa Fitzgerald, Actor; Senior Director; Justice for Vets
Last month, a veteran U.S. Marine "basically baked to death" in a New York City jail after a malfunctioning heating system caused the temperature in his cell to exceed 100 degrees. Jerome Murdough was being held not because he was convicted of a crime or because he had a violent criminal history that made him a risk to the public. Rather, Jerome Murdough died in a 6-by-10 cinder block cell because the system failed him as a veteran, and he couldn't afford the bail that was set for his release.
Homeless and looking for a warm place to sleep on a cold night in February, Murdough was arrested for trespassing on the roof of an apartment building in Harlem. He was presented with two options: (1) either pay the city $2,500 in order to be released -- a cost-prohibitive sum for someone without a job or a home, or (2) be detained on Rikers Island and wait for his case to be adjudicated, a process that can take months or even years.
The system failed in this case, in a significant way. By not having community-based supervision assets, the court in NYC had no way to address Murdough's need for support pending trial. New York's bail laws were never updated to include community safety as a legitimate purpose of bail, and so no investment has even been made in what research shows works -- pretrial community-based supervision that mitigates the risk of flight and re-arrest. The only "tool" the court has to use, then, is money -- either pay bail or stay in jail. It's a crude tool, a double-edged sword. It favors people with it, punishes those without. It rewards those with access to cash -- often ill-gotten -- and keeps those who need support and services to cease further low-level criminal behavior in a system guaranteed to make them worse off, not better.
Today, there are hundreds of thousands of low-risk individuals unnecessarily occupying jail beds who haven't been convicted of a crime. They are there because, like Murdough, they can't afford the cost of release. One doesn't even have to leave Rikers Island to find another disturbing example of this system at work. Kalief Browder, 16 years old at the time of his arrest and unable to afford his $10,000 bail, was held on Rikers Island for nearly three years without ever having been convicted of a crime or put on trial. He was released late last year with no explanation.
While there are a number of effective ways we can fix the broken pretrial system, two in particular stand out as being relevant to Murdough's case: the shift from a resource-based pretrial system to risk-based pretrial system, and the need to properly identify, assess and divert veterans like Murdough who simply need access to the treatment and benefits they have earned.
In a resource-based pretrial system, access to cash determines what happens. If you are poor, you stay in jail pending trial. If you stay in jail pending trial, you are more likely to be adjudicated guilty. If you are adjudicated guilty, you are more likely to get a sentence that includes incarceration. If you serve time in jail or prison, you are more likely to commit more crime when you get out. So, this first decision -- to release or detain before trial -- determines pretty much everything that will happen from that point forward. Instead, jurisdictions can make better use of risk assessments to help understand who can be issued a citation in lieu of arrest and who can be released after booking with supervision conditions monitored by the court. Murdough did not have to be in jail pending trial -- if NYC had the cost-efficient and necessary supervision strategies it needs, he could have been out pending trial, supervised and connected to the services he needed, such as those provided by the U.S. Department of Veterans Affairs. Don't forget, he was arrested for trespassing on a night it was freezing out. That was his crime -- and one for which he died. It didn't have to be that way.
Like Murdough, tens of thousands of veterans are living on the street, and many more are languishing behind bars for crimes that were a result of unmet behavioral health needs like addiction, depression or post-traumatic stress disorder. Across the country Veterans Treatment Courts have emerged as a response to increasing numbers of veterans coming before the courts, but they must be rapidly expanded in order to meet a growing need. Murdough had a history of misdemeanor convictions, common among those with unaddressed issues and chronic homelessness. Had a Veterans Treatment Court been available, he could have been diverted out of the traditional revolving-door system and connected to the services he needed to get his life back on track. Jerome Murdough fought for our freedom, and we did nothing to fight for his.
As the investigation into Murdough's death continues, it is important to remember that unless we fundamentally reform the way in which we approach the pretrial process by using tested, best-practice tools, we will be reading about another "Jerome Murdough" in the near future. We are leaving too many men behind.