It is not every day that the world wakes up to the crisis in America’s jails. Thanks to an important new report by the Vera Institute, my twitter feed today is buzzing about jails. Can I be any more excited? Slick infographics and lots of data all in one place, and a financial incentive for jails from the MacArthur Foundation for them to get to work. This is a BIG deal and I’m glad that both organizations are working to make jails apart of the ongoing reform discourse.
What’s problematic, of course, is that folks are using presentist language to describe the findings- chief among them, a historically inaccurate The New York Times headline: “Jails Have Become Warehouses for the Poor, Ill and Addicted, A Report Says.” This is frustrating. There is a deeper history that shows that America’s jail crisis has been ongoing since at least the 1950s. This crisis has been accompanied by a reform movement that for just as long has been unable to garner adequate funding for jails and has been not been able to influence the systemic reform needed to keep people out of jails. The history of American jails does not give me a lot of confidence that jail reform is possible.
One of the key historical claims comes on the first page of the report:
“this report marks a bittersweet homecoming for Vera as our very first project was The Manhattan Bail Project, which showed that many, if not most, people accused of com- mitting a crime can be relied on to appear in court without having to post bail or be held until trial. The lessons we learned and shared in 1961 have not stuck nearly enough.”
The Manhattan Bail Project was a game changer and its reference speaks to the deeper history. After World War II, jails were overcrowded hellholes. Unlike jails today, few offered adequate healthcare or training for guards. It was difficult to inmates to access books, lawyers, or even their families- most jails didn’t allow children to visit. Basic laundry services were limited for inmates who wore their own clothes and bedbugs were rampant. Food spending was often a quarter of what it was in prisons. People went to jail for many of the same reasons as today- thefts, DUIs, narcotics, violent crimes- but also for reasons that are less common than today- like failure to pay alimony. In many cases, they were in jail because they could not pay bail.
Cook County Jail was overcrowded when it opened in 1929 and it was still overcrowded in 1954. In Cook County, bail reform projects modeled after the Manhattan Bail Project during the 1960s and 1970s helped to reduce the amount of bail paid (just 10% of the total amount) or in many situations, allowed for “release on recognizance” with no bail paid at all. Using risk assessment, courts used social information about inmates in order to determine whether they might commit crimes while awaiting court or not show up for court (interestingly, some of these risk assessments. Court reform increased the number of judges, helping to reduce “time to trial.” Night courts, weekend courts, and holiday courts came out of this moment.
The Manhattan Bail Project, and projects like it, however, failed to produce lasting reform. Even in the midst of bail reform, jails like Cook County remained overcrowded from the 1960s onward. Judges never used ROR as much as activists wanted; police, armed with new cool toys, policed without regard for the amount of space jails actually had. Policymakers advocated for more punitive policies and policing of a wider number of crimes. Jails were so overwhelmed with bodies that programming- including drug rehabilitation programs- was often out of reach or operated at too small of a scale to have a meaningful impact, usually because of cost.
With the coming of inmate class action suits in the 1970s and 1980s, jails could no longer wait for other elements of the criminal justice apparatus to reform themselves. Federal judges condemned filthy conditions, lack of beds, brutality, and violence as violating the due process rights of people who had not gone to trial. Since then, many jails have focused on their struggle to maintain constitutionally sound conditions (which is a very low standard).
The crisis in American jails is not new. When I think of the history of American jails, I agree with the Vera Institute’s conclusion:
“The misuse of jails is neither inevitable nor irreversible. But to chart a different course will take leadership and vision. No single decision or decision maker in a local justice system determines who fills the local jail. While some jurisdictions have made strides in developing, implementing, and evaluating off-ramps from the path that leads to the jailhouse door, change at one point in the system will have limited impact if other key actors and policies pull in the opposite direction.”
However, I’m not so sure the institutional or political capacity- let alone, will- yet exists “to both scale back and improve how jails are used in a sustainable way.” That so many jails are now under federal oversight shows that even if jails reduced the numbers of people inside them, it would take decades of work and billions of dollars to make them into institutions that are actually able to serve the common good and promote human dignity. Nobody- not politicians, activists, citizens, jail administrators, or sheriffs– has ever truly been up for that task for the long haul. The very history of American jails shows that jails are one of our country’s most unsustainable institutions. Can jails be saved? Are they worth saving? I’m not so sure.