Untangling the Inequities of Incarceration

By Mary Anglim — Reducing the number of prisoners in the Dane County jail, providing better supportive services to prisoners, especially those suffering from mental illness, and above all reducing the racial disparity in arrests, charges, convictions, and sentences in our criminal justice system, are the goals of three workgroups established by the Public Protection and Judiciary Committee of the Dane County Board.

Meeting since mid-July, the workgroups are expected to turn in their recommendations in early September. Then, by the end of 2015, a consultant will figure out how to implement them, as well as how to fix certain safety hazards and sub-standard arrangements in parts of the current jail.

Did you know this was going on? Few citizens have attended at the workgroup meetings, understandably—they are long and start just before the end of most folks’ work days, and it is summer. The questions are often technical and the opportunity for citizen input is not easy to find.  But as Yogi Berra said, “You can observe a lot just by watching.”

New Jail Or Not?

Does Dane County need a new jail? Sheriff Mahoney thought so. Over a year ago, he proposed an ambitious and expensive plan to expand the county jail, by fixing serious safety hazards in the existing facility, increasing the number of beds, and offering new and more humane services to prisoners, especially those suffering from mental illness.

But the price tag—$135 million—was unacceptable to the County Board, and the notion that the County should plan for even more prisoners drew intense criticism from community groups. Why not just repair the defective locks and other physical problems in the jail, do better coordination of services for those incarcerated, make it easier for people charged with minor offenses to live in the community while awaiting trial, and reduce racial disparities?

Dane County isn’t alone in asking such questions. Nation-wide, even conservatives are starting to look at the costs of incarceration and advocating for reducing the numbers of prisoners. The racial dimension of mass incarceration is starting to sink in. We already knew from studies like the 2014 Race to Equity Report that Dane County and Wisconsin as a whole has one of the worst records in the nation for racial disparity in arrests and incarcerations.

To cite just one of many statistics, as Dane County Resolution 556 noted, “African American adults are eight times more likely to be arrested in Dane County than white adults. This is double the adult arrest disparity rates in the rest of the state and more than triple the national numbers.” 

Last winter, Young, Gifted, and Black protested the new jail proposal as just more of the same unjust singling out of people of color for arrest and incarceration. Other community groups, notably the state-wide coalition of churches and individuals, WISDOM, and its Madison chapter, MOSES, lobbied the county, the state legislature and the Department of Corrections (DOC) to reduce the number of prisoners, to stop use of solitary confinement, and to offer more alternative treatments and diversions to people charged with less serious offenses. (I am a member of MOSES and have been following the jail issue as part of its Jail Task Force.) 

Several Progressive Dane Supervisors, notably Leland Pan, worked hard to amend earlier versions of the proposal to make clear that the new prison is not a given and that reducing numbers of prisoners and disparate impact are critical goals.

Investigating Current Practices

In May, the County Board passed Resolution 556, authorizing a study of ways to reduce the time people spend in the county jail, provide better mental health and other supportive services, and expand alternative treatment options. Among many other very detailed mandates, it notes that “the County Board is unequivocally stating its support for eliminating racial disparities, reducing incarceration, reducing the number of jail beds, as well as its opposition to the construction [of] a new stand-alone jail.”

Three workgroups authorized by Resolution 556 were charged as follows:

• Mental Health, Solitary Confinement, and Incarceration: investigate the possibility of creating a mental health court or toolkit to help judges decide what to do, and suggest designs of one or more community-based facilities for people needing mental health or substance abuse services.

• Length of Stay: why do so many people have to wait so long in prison before being charged or tried?  How does race enter in?  How can we reduce the time spent in jail before a person is sentenced? Ideas include weekend arraignment court, doing away with cash bail, expanding electronic monitoring, and routing people to alternative treatment programs.  Obviously, reducing length of stay helps people keep their jobs, their housing, and their family. It also reduces costs to the correctional system.

• Alternatives to Arrest and Incarceration: look for ways to divert first offenders and young people to treatment options and other alternatives to prevent their going to prison. 

Members of the three workgroups were chosen by the Public Protection and Judiciary Committee. Each includes one or more County Supervisor, professional experts, and some community activists.

Incomplete Data, but Clear Bias

I have attended most meetings of the Length of Stay workgroup. My view is that the members of the workgroups are committed to eliminating disparities in treatment based on race. They understand that they cannot wait for perfect data before deciding on some remedies to racial disparity. However, it turns out to be very difficult to answer even relatively simple questions.

For example,  which misdemeanors can—or actually do—result in a stay in jail before trial? Some experts think that only “violent misdemeanors,” or actions that are a danger to self or others, result in the person being denied release on a small bail or a signature bond. Others point to the fairly high number of people on a given day being held for misdemeanors. 

Another example: is there a racial bias in how offenders are offered alternatives or diversions from prison? The numbers suggest that people of color get drug or mental health treatment disproportionately less often than white people. But data collection is often poor or nonexistent. The categories by which people are counted (including data about their race and their offense) are inconsistent, incomplete, and sometimes unreliable. Nonetheless, the disparities are large enough to outweigh any faults in the data. 

It’s been very eye-opening to me to learn what criteria are applied when deciding whether an arrested person should be released on a signature bond. Does the person have stable housing? Does he/she have ties to the community? A job? 

Clearly, it might be harder for a person of color to meet these standards, which means that a stay in jail might be more common. That, in turn, can lead to loss of a job, family disruption, misunderstandings with a landlord and resulting eviction. In other words, a stay in jail before being convicted of any crime due to lack of access to bail or signature bond can ruin your life. 

Similarly, it’s been a sad education to learn how revocation works. When a person who is released from prison but is still on paper breaks a rule of probation (which can be trivial, such as a curfew violation, or a technical malfunction in the electronic monitoring), or commits a new crime or is suspected of doing so, he/she can be held in the county jail pending DOC’s decision on whether to send the person back to prison. A certain percentage of our jail population consists of people awaiting a determination from DOC. 

These holds can be very lengthy in some cases, and the person’s rights to due process are substantially limited because the previous sentence is still in effect. The county jails are required to detain such prisoners but generally cannot release them pending court hearing or provide them with alternatives. 

The recommendations from the workgroups will be in the news in September.  Watch for them, weigh them, and let your County elected officials hear what you think of them. Will they help to reduce racial disparities in the criminal justice system? What would work better?