What's Happening in Pretrial Justice? August 2023

No One Should Pay Cash Bail. An editorial in the Los Angeles Times this week asserts that former President Donald Trump should not have to pay cash bail—and neither should anyone else. The editorial board notes that it makes sense to set individualized conditions of release, but “[i]t makes no sense at all to make one of those conditions paying bail, which means virtually nothing to the rich, but loss of liberty, and sometimes life, to the poor.”  In Fulton County, GA, where President Trump is facing charges, at least four people have died in the last month in a violent and inhumane jail.

Fulton County Jail Needs Fewer People, Not More Beds. A new ACLU report notes that rather than leasing more beds, Fulton County Jail could avoid overcrowding through common-sense measures such as not jailing people because they can’t afford bond and releasing most people charged with misdemeanors. As of September 2022, the jail had exceeded capacity by over 300 people, but was holding 293 people who could not afford bail, 242 people charged only with misdemeanors, and 105 people eligible for diversion.

Diversion? Deflection? How Does Your State Stack Up? The National Conference of State Legislatures has released a legislative primer on deflection and diversion, explaining how the programs differ, describing notable models, and tabulating state legislative support for specific issues and populations, such as substance use, mental health, veterans/active military, and domestic relations (including domestic violence and/or child abuse/neglect).

NYC Dashboard Recounts Staffing, Mental Health Problems. In August 2022, the New York City Comptroller’s Office began publishing monthly stats on management and operational issues related to the city’s jails, and the office has just released its first annual report. On average, 17% of jail staff were unavailable for work due to taking sick time or being on medical leave on any given day. The number of people detained and diagnosed with serious mental illness has increased from 700 in July 2020 to over 1200 in May 2023, and the overall population has increased as well. Fights have increased 20% in the last 12 months. Since January 2022, at least 26 people have died in custody in NYC jails.

Bureau of Prisons to Increase Access to Counsel. In spring 2023, Deputy Attorney General Lisa Monaco called for a comprehensive review of practices related to access to counsel at federal Bureau of Prison (BOP) pretrial facilities. Following the release of the report, which examines all aspects of legal access from visitation to special needs populations to e-discovery, Monaco has called on the BOP director to take immediate action by establishing a Legal Access Advisor within BOP’s central office and issuing immediate guidance to enhance access to legal visits. 

Bill Introduced to End Loss of Benefits While in Pretrial Custody. Senator Ed Markey (MA) and Sen. Jeff Merkley (OR) have re-introduced the Equity in Pretrial Health Coverage Act, which would remove limitations of benefits under Medicaid, Medicare, CHIP and the Department of Veterans of Affairs for people in pretrial custody. Markey pointed out in his press release that people who are able to post bail can maintain their coverage, while people who cannot afford bail can lose coverage for essential care.

Responses to FTA Not About Improving Appearance. A new report from the Prison Policy Initiative (PPI), with help from the National Conference of State Legislatures, has found on balance, state responses to failure to appear (FTA) are focused on punishment, not improving appearance. Forty-one states impose additional penalties for FTA, including 20 states allowing jail or prison time, 17 jurisdictions (including D.C.) allowing fines and fees, and 4 states imposing a strict liability standard for FTA.

To learn more about FTA policies and practices, check out PJI’s recent report and roundtable on Unpacking Willful Flight.