Pretrial incarceration rates are known to be high in urban areas, In fact, Harris and Dallas Counties are currently enveloped in a lawsuit over that issue. However, the growing rate in rural areas isn’t as widely discussed and a recent study may help change that.
“The decades-long growth in rural pretrial incarceration has taken a toll on taxpayers and individual liberties,” reads the opening of a Right on Crime report written by the Texas Public Policy Foundation’s Marc Levin and Michael Haugen. Not only does the report identify the factors that spurred the growth of rural pretrial incarceration, but they issue recommendations to address the growing burden.
“Pretrial incarceration represents a deprivation of liberty that should be the exception, not the norm.” Pretrial incarceration is when someone accused of a crime is held in jail to await trial. While this can happen for a number of reasons, like the defendant being too much of a risk to release, many people are held simply because they cannot afford bail.
While most are offered bail, many don’t have the means for it, and under the cash bail system that means many people will be left in jail, waiting for their trial date to begin. This causes wide-reaching social problems like the loss of employment, a home, and personal transportation, to name a few.
Right on Crime found that in 1994, Texas’ jail population consisted of 33 percent pretrial detainees. By 2016, the number jumped to 74 percent.
One of the reasons for this increase, according to Right on Crime, is the lack of presumption of innocence for pretrial detainees. “Society seems to have forgotten, at least in the case of pretrial detention, that American citizens are presumed innocent until proven guilty.” Instead of determining if there is a justifiable interest in keeping a person in jail, many are automatically given bail amounts well out of a range they can afford.
Another factor in the rural pretrial incarceration growth is the increased holding of detainees from other local jurisdictions.
Between 1992 and 2017, there was a 62 percent increase in holdings of Texas inmates not arrested in that local jurisdiction. This is, at least, in part due to overcrowding in federal facilities. The report says that as local jurisdictions build beds to address their needs, the reimbursements received for housing other inmates acts as an incentive to build even more. The incentives can range from $25 to $169 per person and, like with the reliance on civil asset forfeiture dollars, this can create a perverse incentive in smaller, underfunded jurisdictions.
The opioid epidemic also plays a role in rural incarceration. As it has hit rural areas the hardest, these jurisdictions tend to be some of the least prepared to not only deal with the influx of drug-related arrests, but to address the specific needs associated with housing drug users. The report noted that in Maine specifically, jurists are hesitant to release people who are suspected of having, or reported to have, a drug addiction.
According to Right on Crime, only 25 Texas counties employ a risk assessment tool to help judges determine someone’s provisions of release, despite studies showing that the use of this tool lowers the likelihood of pretrial misconduct. Another study showed that using assessments can save an average of $900 per defendant, largely due to the high costs of incarcerating low-risk offenders, as well as potentially high costs of releasing high-risk offenders.
“A 2017 review of Harris County found across all risk levels that those defendants released on pretrial supervision had the lowest recidivism rates followed by those released on cash bail,” reads the report, whereas those detained pretrial had the highest recidivism rates.
The report also suggests additional solutions to rising pretrial populations. Some of these include limiting overcriminalization by reducing the number of jailable offenses, revising state bail laws, and using police diversion.
In Texas, there are over 1,700 offenses. All of them but speeding and open container of alcohol can be cause for arrest. The report calls for more offenses to be handled civilly rather than as criminal or other and that jailable misdemeanors be reduced to Class C misdemeanors that carry no penalty of jail time.
They also call for police discretion when it comes to diversion. “There are many forms of police diversion, which can include a specially trained police officer defusing a call regarding a disruptive mentally ill individual, the referral of a person to a civil process for drug or mental health treatment, and referral of a dispute to remediation.”
The report points to Seattle’s Law Enforcement Assisted Diversion (LEAD) program, which allows police to refer individuals who are apprehended for drugs or prostitution to a case manager, who in turn refers them to treatment rather than incarceration.
In Lubbock, police can refer cases to mediation. According to the report, it has led to roughly 90 percent of those cases being successfully resolved.
While often the conversation over incarceration, and more specifically pretrial incarceration, centers on major jurisdictions, the problem is just as stark and growing at an accelerated rate in rural jurisdictions across Texas.