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Evidence-Based Solutions to the Mass Incarceration Crisis: Neuroscience and Cash Bail

Mass incarceration is a public health crisis with particular relevance to the neuroscience community. Much of our work as neuroscientists revolves around the criminal justice system, including mental illness, adolescent development, addiction, and educational attainment. In our efforts to progress society by pushing the boundaries of human knowledge, we urge the neuroscience community to consider incorporating efforts to ensure that existing science is harnessed to affect solutions. The neuroscience field has long offered insight on the effective and humane treatment of those most adversely affected by the criminal justice system (e.g., the continuation of brain development into our mid-20s and application of such findings to the trying of children as adults – a common practice in California), and we must continue to advocate for the incorporation of science in the criminal justice system.

One surprising driver of the mass incarceration crisis is pretrial detention, which refers to the detainment of those accused of a crime before they receive their trial. 95% of the growth in the U.S. jail population over the last 20 years is due to pretrial detention [1], which is in turn driven by the cash bail system. Cash bail is a term many of us have likely heard, but understanding the context of its operation is critical to understanding how the mass incarceration crisis has developed. Briefly, a pretrial defendant is assessed by a judge (sometimes with input from prosecutors, probation officers, etc.) on whether they pose a threat for (A) flight (not showing up to trial) or (B) danger to society. Those who are not a threat are offered freedom until their trial, for a fee. Inability to pay that fee deems a defendant a liability to return for trial, so they are placed in pretrial detention (usually in local jails that can actually pose greater dangers to health due to lack of comprehensive medical services, especially for mental illness [2-4]). Thus, the cash bail system conflates wealth with accountability and effectively funnels low-income and marginalized populations into our jails. Cash bail is indefensible, and the U.S. is one of only two countries in the world to operate on what is a transparently biased and discriminatory system.

 

“Thus, the cash bail system conflates wealth with accountability and effectively funnels low-income and marginalized populations into our jails”

 

Cash bail is unjust. So is much else in our society. Why else should we care? Cash bail is wildly inefficient: it compromises public health without a justifiable preservation of public safety. The disruption to one’s life and its effects on physical and mental health are severe [3-11]. All of these amplify health, social, and financial burdens associated with recidivism [4, 12-17]. Imprisonment for even just three days increases the chance of committing another crime and perpetuates the cycle of incarceration [17]. See “The Costs of Cash Bail” for an assessment of all the inefficiencies and inequalities of cash bail.

Cash bail continues to prevail in California. However, there are a variety of promising alternatives and data points:

 

  • Diversion to appropriate addiction and mental health professionals effectively reduces the burden on the criminal justice system while getting people the help they need [18 ] but is vastly underused in LA County [19].

  • Restorative, community-based interventions have been shown to be highly successful [20-24].

  • Simple behavioral nudges, such as text message reminders and transportation to court appearances, effectively and inexpensively increase court appearances [24-29].

  • On the other hand, interventions that prioritize discipline and surveillance have been shown to be largely ineffective [20,21] and can elevate incarceration rates through petty technical violations [30,31]. They also can cause financial strain through mandates for things like courses that impede employment (who can leave work at 1:00 pm on a Tuesday for a mandatory course that, if not completed, lands them back in jail?) and expensive ankle monitors (sometimes up to $900!) [32].

  • Prioritizing pretrial services that emphasize restorative, community-oriented solutions would create thousands of jobs and is projected to save billions annually (in 2014, an estimated $10 billion with a pretrial detainment rate of 40%, and $20 billion at 10% [33]).

 

Our current system of pretrial detention is on the ballot this November and presents an opportunity to address this urgent issue. As neuroscientists and medical researchers, we are invested in improving health outcomes for vulnerable, system-impacted populations (i.e., children, the mentally ill, etc.), and we must recognize the value that evidence-based approaches to addressing pretrial detention will have for public health. Shifting towards pretrial release over detainment is the only option that ensures equity and avoids the health dangers of imprisonment, as well as beginning to move away from perpetuating the cycle of incarceration and generational trauma. In fact, places that have prioritized pretrial release have not seen an increase in court absences, violent crimes, or arrests (seriously, it doesn’t [7,34-40]). In Santa Clarita County, 95% of released defendants appear for court and only 1% are rearrested while awaiting trial [41].

 

“As neuroscientists and medical researchers, we are invested in improving health outcomes for vulnerable, system-impacted populations”

 

California’s cash bail system is socioeconomically & racially discriminatory and dangerous to physical & mental health. Unfortunately, the measures proposed in SB10 (Prop25) may be even worse [42]. The bail reforms proposed on the ballot this November in Proposition 25 (previously Senate Bill 10) are not predicted to reduce pretrial detention [35,37,43-46]. Prop 25 relies on risk assessment tools that algorithmically determine risk of fleeing or committing a crime. However, an algorithm is only as good as its data, and this data is known to discriminate based on race and socioeconomic status [37,45,47-57]. The measures in Prop 25 are projected to be just as discriminatory as our current system. Even the ACLU has revoked their support [58]. See “Inefficiencies and Dangers of Actuarial Risk Assessment Tools” for all the reasons risk assessments are insufficient.

 

As scientists, we are trained to recognize the good data from the bad, and we can recognize that these solutions are sloppy. When thinking about designing a pretrial system, there do exist efficient and thoughtful solutions that also happen to be simple and cost-effective. More research is needed, including longitudinal analyses and randomized control trials [59], but the research that currently exists can still be put to use. Pretrial detention is a large but singular piece to addressing the mass incarceration issue. We have a responsibility to voice our support for solutions that will make for a just, evidence-based, safer, and healthier society.

 

“The bail reforms proposed on the ballot this November in Proposition 25 (previously Senate Bill 10) are not predicted to reduce pretrial detention”

 

~
— Written by Zoe Guttman and Yuki Hebner.

— Edited by Elizabeth Burnette and Holly Hake.

The writers and editors encourage California residents to vote NO on CA Proposition 25.
Learn more about the science of cash bail in this article.

~

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References
  1. Sawyer, Wendy, and Peter Wagner. 2020. Mass incarceration: The whole pie 2020. Prison Policy Initiative (Northampton, MA). https://www.prisonpolicy.org/reports/pie2020.html.
  2. Toman, Elisa L., Joshua C. Cochran, and John K. Cochran. 2018. “Jailhouse Blues? The Adverse Effects of Pretrial Detention for Prison Social Order.” Criminal Justice and Behavior45 (3): 316-339. https://doi.org/10.1177/0093854817753018.
  3. Yi, Youngmin, Kristin Turney, and Christopher Wildeman. 2017. “Mental health among jail and prison inmates.” American Journal of Men’s Health11 (4): 900-909. https://doi.org/10.1177/1557988316681339.
  4. Caspar, Samantha M., and Artem M. Joukov. 2020. “Mental Health and the Constitution: How Incarcerating the Mentally Ill Might Pave the Way to Treatment.” Nevada Law Journal20 (2): 6. https://scholars.law.unlv.edu/nlj/vol20/iss2/6.
  5. Human Impact Partners. 2020. Liberating Our Health: Ending the Harms of Pretrial Incarceration and Money Bail. (Oakland, CA). https://humanimpact.org/wp-content/uploads/2020/02/HIP_HealthNotBailNationalReport_2020.02_reduced.pdf.
  6. Stevenson, Megan T. 2018. “Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes.” The Journal of Law, Economics, and Organization34 (4): 511-542. https://doi.org/10.2139/ssrn.2777615.
  7. Stevenson, Megan T., and Sandra G. Mayson. 2017. “Pretrial detention and bail.” In Reforming Criminal Justice, edited by Erik Luna. Arizona State University: Academy for Justice.
  8. Comfort, Megan. 2016. “A Twenty-Hour-a-Day Job: The Impact of Frequent Low-Level Criminal Justice Involvement on Family Life.” The Annals of the American Academy of Political and Social Science665 (1): 63-79. https://doi.org/10.1177/0002716215625038.
  9. Rabuy, Bernadette, and Daniel Kopf. 2016. Detaining the poor: How money bail perpetuates an endless cycle of poverty and jail time. Prison Policy Initiative. https://www.prisonpolicy.org/reports/incomejails.html.
  10. Appleman, Laura. 2016. “Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System.” Boston College Law Review57: 1483. https://lawdigitalcommons.bc.edu/bclr/vol57/iss5/2.
  11. Holland-Stergar, Brianne, Carolyn Barden, Alicia Brush, Rachel Clark, Shelby King, Jessica Cobb, and Neelum Arya. 2017. The Devil in the Details: Bail Contracts in California. UCLA School of Law Criminal Justice Reform Clinic. https://static.prisonpolicy.org/scans/UCLA_Devil%20_in_the_Details.pdf.
  12. Albertson, Elaine Michelle, Christopher Scannell, Neda Ashtari, and Elizabeth Barnert. 2020. “Eliminating gaps in medicaid coverage during reentry after incarceration.” American Journal of Public Health110 (3): 317-321. https://doi.org/10.2105/ajph.2019.305400
  13. Kouyoumdjian, Fiona G., Kathryn E. McIsaac, Jessica Liauw, Samantha Green, Fareen Karachiwalla, Winnie Siu, Katie Burkholder, Ingrid Binswanger, Lori Kiefer, Stuart A. Kinner, Mo Korchinski, Flora I. Matheson, Pam Young, and Stephen W. Hwang. 2015. “A systematic review of randomized controlled trials of interventions to improve the health of persons during imprisonment and in the year after release.” Am J Public Health105 (4): e13-33. https://doi.org/10.2105/ajph.2014.302498.
  14. Deitch, David, Igor Koutsenok, and Amanda Ruiz. 2000. “The Relationship Between Crime and Drugs: What We Have Learned in Recent Decades.” Journal of Psychoactive Drugs32 (4): 391-397. https://doi.org/10.1080/02791072.2000.10400241.
  15. Prendergast, Michael L., Elizabeth A. Hall, Harry K. Wexler, Gerald Melnick, and Yan Cao. 2004. “Amity Prison-Based Therapeutic Community: 5-Year Outcomes.” The Prison Journal84 (1): 36-60. https://doi.org/10.1177/0032885503262454.
  16. Leutwyler, Heather, Erin Hubbard, and Elaine Zahnd. 2017. “Case management helps prevent criminal justice recidivism for people with serious mental illness.” International Journal of Prisoner Health. https://doi.org/10.1108/IJPH-06-2016-0021.
  17. Lowenkamp, Christopher T, Marie VanNostrand, and Alexander M Holsinger. 2013. The hidden costs of pretrial detention. Laura and John Arnold Foundation. https://craftmediabucket.s3.amazonaws.com/uploads/PDFs/LJAF_Report_hidden-costs_FNL.pdf.
  18. Ochoa, Kristen, Oona Appel, Viet Nguyen, and Elizabeth Kim. 2019. “Decriminalization in action: lessons from the Los Angeles model.” CNS Spectrums: 1-5. https://doi.org/10.1017/S1092852919001561.
  19. Holliday, Stephanie Brooks, Nicholas M Pace, Neil Gowensmith, Ira Packer, Daniel Murrie, Alicia Virani, Bing Han, and Sarah B Hunter. 2020. Los Angeles County Jails Could Divert More Individuals to Community-Based Mental Health Services. RAND Corporation. https://www.rand.org/content/dam/rand/pubs/research_briefs/RB10100/RB10111/RAND_RB10111.pdf.
  20. MacKenzie, Doris L., and David P. Farrington. 2015. “Preventing future offending of delinquents and offenders: what have we learned from experiments and meta-analyses?” Journal of Experimental Criminology11 (4): 565-595. https://doi.org/10.1007/s11292-015-9244-9.
  21. Bechtel, Kristin, Alexander M Holsinger, Christopher T Lowenkamp, and Madeline J Warren. 2017. “A meta-analytic review of pretrial research: Risk assessment, bond type, and interventions.” American Journal of Criminal Justice42 (2): 443-467. https://doi.org/10.1007/s12103-016-9367-1.
  22. Barnes, Geoffrey C, Lindsay Ahlman, Charlotte Gill, Lawrence W Sherman, Ellen Kurtz, and Robert Malvestuto. 2010. “Low-intensity community supervision for low-risk offenders: a randomized, controlled trial.” Journal of Experimental Criminology6 (2): 159-189. https://doi.org/10.1007/s11292-010-9094-4.
  23. Gasek, Jade. 2019. “Community First: Why California’s Elimination of Cash Bail May Have Missed the Mark.” University of the Pacific McGeorge Law Review51: 1. https://www.mcgeorge.edu/documents/Publications/gasek-tuoplr-511.pdf.
  24. Cooke, Brice, Binta Zahra Diop, Alissa Fishbane, Jonathan Hayes, Aurelie Ouss, and Anuj Shah. 2018. Using behavioral science to improve criminal justice outcomes. University of Chicago Crime Lab Report. https://www.courthousenews.com/wp-content/uploads/2018/01/crim-just-report.pdf.
  25. Rosenbaum, David I, Nicole Hutsell, Alan J Tomkins, and Brian H Bornstein. 2011. “Court Date Reminder Postcards: A Benefit-Cost Analysis of Using Reminder Cards to Reduce Failure to Appear Rates.” Judicature95: 177.
  26. Schnacke, Timothy R, Michael R Jones, and Dorian M Wilderman. 2012. “Increasing court-appearance rates and other benefits of live-caller telephone court-date reminders: The Jefferson County, Colorado, FTA pilot project and resulting court date notification program.” Court Review48: 86.
  27. White, Wendy F. 2006. Court hearing call notification project. Criminal Justice Coordinating Council & Flagstaff Justice Court (Coconino County, Arizona). www.coconino.az.gov/uploadedFiles/Criminal_Justice_Coordinating_Council/ReportFTA.doc.
  28. Pretrial Justice Institute. 2012. Using Technology to Enhance Pretrial Services: Current Applications and Future Possibilities.http://thecrimereport.s3.amazonaws.com/2/85/0/1651/pji_using_technology_to_enhance_pretrial_services.pdf.
  29. Fishbane, Alissa, Aurelie Ouss, and Anuj K Shah. 2020. “Behavioral nudges reduce failure to appear for court.” Science.
  30. Turner, Susan, Joan Petersilia, and Elizabeth Piper Deschenes. 1992. “Evaluating intensive supervision probation/parole (ISP) for drug offenders.” Crime & Delinquency38 (4): 539-556. https://doi.org/10.1177/0011128792038004009.
  31. Hyatt, Jordan M., and Geoffrey C. Barnes. 2017. “An experimental evaluation of the impact of intensive supervision on the recidivism of high-risk probationers.” Crime & Delinquency63 (1): 3-38. https://doi.org/10.1177/0011128714555757.
  32. Doyle, Colin, Chiraag Bains, and Brook Hopkins. 2019. Bail reform: A guide for state and local policymakers. Criminal Justice Policy Program, Harvard Law School. http://cjpp.law.harvard.edu/assets/BailReform_WEB.pdf.
  33. Amatya, Pranita, Shelby King, Shelby McNabb, and Heidi Schultheis. 2017. Bail Reform in California. UCLA Luskin School of Public Affairs. https://university.pretrial.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=835f283a-e9fc-9c56-28bb-073a9bcb1dbf.
  34. Pretrial Justice Institute. 2009. “The D.C. Pretrial Services Agency: Lessons From Five Decades of Innovation and Growth.” Case Studies2, no. 1. https://www.psa.gov/sites/default/files/PJI-DCPSACaseStudy.pdf.
  35. Ouss, Aurelie, and Megan T. Stevenson. 2020. “Bail, Jail, and Pretrial Misconduct: The Influence of Prosecutors.” George Mason Legal Studies Research Paper No. LS 19-08. https://doi.org/10.2139/ssrn.3335138.
  36. Grant, Glenn A. 2019. Report to the Governor and the Legislature. New Jersey Judiciary, Administrative Office of the Courts (New Jersey). https://www.njcourts.gov/courts/assets/criminal/2018cjrannual.pdf.
  37. Stevenson, Megan T. 2018. “Assessing risk assessment in action.” Minnesota Law Review103: 303. https://doi.org/10.2139/ssrn.3016088.
  38. Office of the Chief Judge. May 2019. Bail Reform in Cook County: An Examination of General Order 18.8A and Bail in Felony Cases. Circuit Court of Cook County (Chicago, Illinois). http://www.cookcountycourt.org/Portals/0/Statistics/Bail%20Reform/Bail%20Reform%20Report%20FINAL%20-%20%20Published%2005.9.19.pdf.
  39. Philadelphia District Attorney’s Office, February 19, 2019, “After One Year, the Reduction of Cash Bail in Philadelphia for Low-Level Offenses Found a Success,” https://medium.com/philadelphia-justice/release-after-one-year-the-reduction-of-cash-bail-in-philadelphia-for-low-level-offenses-found-a-13448516a5bf.
  40. Neal, Malik. November 2019. A Window Into a Future Without Cash Bail: A Snapshot Report on Resolved Cases of The Philadelphia Bail Fund. Philadelphia Bail Fund. https://static1.squarespace.com/static/591a4fd51b10e32fb50fbc73/t/5dcd8edde0f89960f8414eaa/1573752550092/PBF_Resolved_Case__FINALpdf.pdf.
  41. County of Santa Clara Bail and Release Work Group. 2016. Final Consensus Report on Optimal Pretrial Justice.https://www.sccgov.org/sites/ceo/Documents/final-consensus-report-on-optimal-pretrial-justice.pdf.
  42. Guttman, Zoe, Yuki Hebner, Kanon Mori, and Jonathan Balk. 2020. “Beyond Cash Bail: Public Health, Risk Assessment, and California Senate Bill 10.” Journal of Science Policy and Governance17 (1).
  43. Stevenson, Megan T., and Jennifer L. Doleac. 2019. “Algorithmic Risk Assessment in the Hands of Humans.” Available at SSRN. https://doi.org/10.2139/ssrn.3489440.
  44. Stevenson, Megan T., and Christopher Slobogin. 2018. “Algorithmic risk assessments and the double‐edged sword of youth.” Washington University Law Review96: 638-656. https://doi.org/10.1002/bsl.2384.
  45. Starr, Sonja B. 2014. “Evidence-based sentencing and the scientific rationalization of discrimination.” Stanford Law Review66: 803. https://www.stanfordlawreview.org/print/article/evidence-based-sentencing-and-the-scientific-rationalization-of-discrimination/.
  46. Dressel, Julia, and Hany Farid. 2018. “The accuracy, fairness, and limits of predicting recidivism.” Science Advances4 (1). https://doi.org/10.1126/sciadv.aao5580.
  47. Angwin, Julia, Jeff Larson, Surya Mattu, and Lauren Kirchner. 2016. Machine bias. (ProPublica). https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.
  48. Hart, Stephen D., and David J. Cooke. 2013. “Another look at the (Im‐) precision of individual risk estimates made using actuarial risk assessment instruments.” Behavioral Sciences & The Law31 (1): 81-102. https://doi.org/10.1002/bsl.2049.
  49. Barabas, Chelsea, Ruha Benjamin, John Bowers, Meredith Broussard, Joy Buolamwini, Sasha Constanza-Chock, Kate Crawford, Karthik Dinakar, Colin Doyle, Timnit Gebru, Bernard E. Harcourt, Stefan Helreich, Brook Hopkins, Joichi Ito, Martha Minow, Cathy O’Neil, Rodrigo Ochigame, Heather Paxson, Venerable Tenzin Priyadarshi, Rashida Richardson, Bruce Schneier, Jason Schultz, Jeffrey Selbin, Vincent M. Southerland, Jordi Weinstock, Jonathan Zittrain, and Ethan Zuckerman. 2019. Technical Flaws of Pretrial Risk Assessments Raise Grave Concerns.https://pbtx.com/files/2019/12/TechnicalFlawsOfPretrial_ML_site.pdf.
  50. Gouldin, Lauryn P. 2018. “Defining flight risk.” University of Chicago Law Review 85: 677. https://chicagounbound.uchicago.edu/uclrev/vol85/iss3/3.
  51. —. 2016. “Disentangling flight risk from dangerousness.” BYU Law Review: 837. https://digitalcommons.law.byu.edu/lawreview/vol2016/iss3/5/.
  52. Picard, Sarah, Matt Watkins, Michael Rempel, and Ashmini Kerodal. 2019. Beyond the algorithm: Pretrial reform, risk assessment, and racial fairness. Center for Court Innovation (New York). https://www.courtinnovation.org/sites/default/files/media/documents/2019-06/beyond_the_algorithm.pdf.
  53. Mitchell, Ojmarrh, and Michael S Caudy. 2015. “Examining racial disparities in drug arrests.” Justice Quarterly32 (2): 288-313. https://doi.org/10.1080/07418825.2012.761721.
  54. Weaver, Vesla M, Andrew Papachristos, and Michael Zanger-Tishler. 2019. “The great decoupling: The disconnection between criminal offending and experience of arrest across two cohorts.” The Russell Sage Foundation Journal of the Social Sciences5 (1): 89-123. https://doi.org/10.7758/RSF.2019.5.1.05.
  55. Rehavi, M Marit, and Sonja B Starr. 2014. “Racial disparity in federal criminal sentences.” Journal of Political Economy122 (6): 1320-1354. https://doi.org/10.1086/677255.
  56. Anwar, Shamena, Patrick Bayer, and Randi Hjalmarsson. 2012. “The impact of jury race in criminal trials.” The Quarterly Journal of Economics127 (2): 1017-1055. https://doi.org/10.1093/qje/qjs014.
  57. Abrams, David S., Marianne Bertrand, and Sendhil Mullainathan. 2012. “Do judges vary in their treatment of race?” The Journal of Legal Studies41 (2): 347-383. https://doi.org/10.1086/666006.
  58. American Civil Liberties Union, November 16, 2017, “91% of Americans support criminal justice reform, ACLU polling finds,” https://www.aclu.org/press-releases/91-percent-americans-support-criminal-justice-reform-aclu-polling-finds.
  59. Greiner, Jim, and Michel Maréchal. Decriminalizing the Poor – The Effects of Abolishing Cash Bail. NOMIS Research Project. https://nomisfoundation.ch/research-projects/decriminalizing-the-poor-the-effects-of-abolishing-cash-bail/.

Author(s)

  • Zoe Guttman

    Zoe received degrees in Neural Science and Psychology from New York University before moving to Los Angeles to pursue her PhD in Neuroscience at the University of California, Los Angeles. In the lab of Dr. Edythe London, she combines cognitive neuroscience and behavioral economics (Neuroeconomics) to investigate decision-making under risk and uncertainty in both healthy people and those with addictive disorders. She uses neuroimaging methods (fMRI, PET), economic tasks, and computational models to better understand why people make less-than-ideal choices in environments of uncertainty. She is a co-founder of the Science Policy Group at UCLA and enthusiastic about science policy and communication.

  • Yuki Hebner

    Yuki earned her BA and MA in Molecular Biology and Biochemistry at Wesleyan University before starting her PhD in Gene Regulation, Epigenomics, and Transcriptomics at UCLA. In the lab of Dr. de la Torre-Ubieta, she studies chromatin remodeling during human cortical development to understand the epigenetic mechanisms underlying psychiatric disease. She is passionate about exploring chromatin biology and neurodevelopment, and is also motivated to advocate for the incorporation of the existing science to help guide problem solving in society. Yuki is the VP of the Science Policy Group at UCLA.

Zoe Guttman

Zoe Guttman

Zoe received degrees in Neural Science and Psychology from New York University before moving to Los Angeles to pursue her PhD in Neuroscience at the University of California, Los Angeles. In the lab of Dr. Edythe London, she combines cognitive neuroscience and behavioral economics (Neuroeconomics) to investigate decision-making under risk and uncertainty in both healthy people and those with addictive disorders. She uses neuroimaging methods (fMRI, PET), economic tasks, and computational models to better understand why people make less-than-ideal choices in environments of uncertainty. She is a co-founder of the Science Policy Group at UCLA and enthusiastic about science policy and communication.

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