Each week we feature an article from Capital Commentary, a weekly current affairs publication by the Center for Public Justice. To read more, visit http://www.capitalcommentary.org.
Criminal justice reform in the United States dates back to the nation’s founding. Perhaps no other new national experiment besides democracy itself received more attention. From a meeting of The Philadelphia Society for Alleviating the Miseries of Public Prisons, convened in the home of Benjamin Franklin in 1787, came the idea that prisons could be places of transformation and not punishment.
This eventually led to the construction of the Eastern State Penitentiary, which opened in 1829 in Philadelphia. Focused on Quaker principles of repentance and transformation, this prison’s architecture drew heavily on that of churches and cathedrals. The experiment, which included solitary confinement and manual labor as venues for self-reflection, did not work. But the seed of the idea of prisons as places of transformation had been planted. Terms such as “Corrections” and “Reformatory” all found root in the concept of the penitentiary. The first Penitentiary in Philadelphia cements that city as a seedbed for reform efforts. We’ll come back to Philadelphia in a moment…
Contemporary reform efforts do well when they similarly consider the need to “alleviate the miseries” of jails and prisons, and offer alternatives that contain the promise of transformation. Such efforts dot the current landscape of federal and state policy changes and challenges, with bipartisan initiatives such as the federal Second Chance Reform Act, and state-based “smart justice” initiatives in places like Georgia and Texas. However, while much attention has been given to reform at the state and federal level, the county jail systems have received far less address, save as extensions of state prisons, as “step down” facilities for inmates about to be released, and as rental centers for the federal prison system for those about to be deported.
In 2015, the John D. and Catherine T. MacArthur Foundation announced its Safety and Justice Challengeinitiative. The foundation determined that it would make available seventy-five million dollars for reforms in America’s system of county jails, deeming that the twelve million annual admissions to such facilities constituted a misuse of the criminal justice system. Foundation president Julia Stasch offered that jails are part of “unfair, ineffective, and inefficient justice systems” that are “inconsistent with American ideals.” Unlike most contemporary criminal justice reform efforts, MacArthur has chosen to focus on jails, not prisons. There is a difference.
Prisons vs. Jails
Many Americans, indeed many Christians, do not know the difference between a prison and a jail. (I shake my head when I visit a church with a prison ministry, whose service is to a county jail). Newscasters announce that an individual “faces up to twenty years in jail” for a crime committed. But prisons and jails are not the same.
Prisons are places where persons serve time of not less than one year, generally on a felony conviction. Jails, on the other hand, house three types of persons: 1) those who have been arrested and are awaiting trial and/or sentencing, 2) those who have been sentenced and are awaiting placement in a state or federal prison, and 3) those serving misdemeanor sentences of less than one year. Exceptions do exist. For example, Pennsylvania uses jails for sentences of up to two years rather than one, and some felony convictions of less than one year can be served in some county jails. But the principle holds: jails are transitional facilities where the status of an individual inmate is very different than that of a prison inmate. Prisons exist for long-term confinement.
As such, jails often serve as detention centers, places where the majority of residents have not yet been tried and are therefore “innocent until proven guilty.” Often, their detention depends on a bail system that assigns a financial value to their ability to spend their pre-trial time with friends, family, and community. In theory, a bail system provides incentive to appear in court, and it makes it more difficult for persons considered at risk to further criminal behavior or even flight, from doing either. Unfortunately, the reality is that the bail system unfairly penalizes low-income persons and families by placing a disproportionate burden on their ability to post.
In the name of public safety, a jail provides a secure setting for those who may be at risk of committing additional crimes in the period prior to trial and sentencing. However, those who pose little threat to community and society become entangled in a system and its jail facilities that inflict further psychic damage, reduce economic opportunity through confinement, and house disproportionate numbers of poor persons. Jails swell as policing practices find root in custodial arrests, and jurisdictions fail to consider alternative methods of accountability that do not separate the accused from family, community, and employment.
Addressing the Problems in Philadelphia’s Jail System
The MacArthur initiative targets the jail system. And there, in the first round of grantees of this initiative, comes Philadelphia again, its county jail system a model of “unfair, ineffective, and inefficient” criminal justice practice. The city’s own self-analysis cites these numbers:
- 60 percent of the city’s jail population is comprised of individuals who are awaiting trial, the vast majority of whom were detained for nonviolent offenses
- 72 percent of individuals awaiting trial are African American
- The average length of stay for detainees is around ninety-five days—four times the national average
While the city’s jail capacity is 6,800, its population has hovered near 10,000 for the last decade, before slowly showing a downturn to current rates of about 8,000. Beset by lawsuits which allege everything from poor conditions due to overcrowding to beatings by corrections officers, the jail’s board and mayor’s staff have been aggressively developing programs that reduce recidivism. Yet similarly aggressive policing, including “stop and frisk” methods, high bail rates, and the poverty from which inmates suffer, has kept the numbers artificially high. Indeed, a Pew Charitable Trusts study documented an increase from 44 percent to 57 percent of inmates being held for trial between 1999 and 2008.
Overcrowding has led to the use of “boats,” plastic bed frames shaped like rafts to enable a third inmate in a two-person cell to sleep on the floor. (As a matter of full disclosure, I spent a week sleeping in a boat as that third inmate during a stay in a neighboring county’s jail. I did not awaken any morning with mouse feces on my face and blanket, as alleged in one of the Philadelphia lawsuits, but I was very uncomfortable sleeping with my head next to the toilet as the third man in our two-man cell.) Philadelphia admits to the undesirability of such practices by limiting the maximum amount of time an inmate has to sleep in a “boat” to forty-five days.
Philadelphia is not without its reform efforts. New Mayor James Kenney has promised an overhaul of the city’s cash bail system, employed by his predecessor as a crime deterrent. The MacArthur grant will provide resources to develop new assessment tools to determine actual risks of flight and further offense for those arrested and seek alternative measures such as intensive community supervision in its place for those with low risk. The previous administration did invest heavily in reentry programs, cutting recidivism rates, but the aggressive policing and high bail systems minimized the gains brought on by recidivism reduction. The district attorney developed an alternative sentencing program, “The Choice is Yours,” for non-violent drug offenders, offering educational and job training alternatives to jail time. The MacArthur grant will provide more resources to explore, develop, and implement such alternatives.
Philadelphia is also beginning to consider alternatives for certain subsets of arrestees, such as veterans and the mentally ill. But there is one “set” that is not “sub.” The numbers of African Americans in Philadelphia’s jails remains disproportionately high, despite the fact that local and national statistics show no appreciable difference in rates of drug use between Blacks and Whites. While speaking at a conference of Christian college students, I asked the group if any of them did not know where to buy drugs. Not a single hand was raised. But their communities receive different policing; some suburban police officers will take a youth home to her/his parents under the same circumstances for which a Philly kid will go to “The Roundhouse,” the police headquarters’ circular building in the city’s center. The MacArthur grant will provide opportunity to develop “an auditing process to better track disparities in the system, while also carrying out an implicit and explicit bias training program for all employees in the justice system.”
Detainees and the Image of God
At the core of the original reforms proposed by The Philadelphia Society for Alleviating the Miseries of Public Prisons lay the fundamental proposition that prisoners were human and capable of change. The penitentiary movement affirmed that all people are created in the image of God and possess the rational faculties of reflection and the spiritual capacity of transformation. Christians considering today’s criminal justice system, whether its long-term facilities called prisons, or what MacArthur calls “The Front Door” of jails, must recognize the humanity of its residents and resist public and cultural tendencies to label and define people as “criminals,” “animals,” “thugs” and the like. Equal Justice Initiative attorney Bryan Stevenson often says that “no human being should be defined by their worst mistake.”
Conversations with detainees and inmates reveal the oft hidden humanity. My jail time exposed me to inmate-created protocols that exhibited glimpses of grace and reminders of real humanity. While I slept on the floor near the toilet, most inmates knew the “courtesy flush” custom of flushing the toilet while moving one’s bowels to minimize the stench in the cell. Even more desirable a practice, inmates would wait until the cell was unoccupied when residents went to the central day room for TV, recreation, or classes, and would go back to the cell and move their bowels. A towel hanging on your cell door said to your two cellmates that you were “occupied.” When I moved to a barracks, one of the seemingly menacing residents strode toward my bunk and yelled, “Somebody get ‘oldhead’ a towel to cover this A/C duct over his head so he doesn’t catch cold.” This is profound evidence of humanity, of concern for others.
The investment and implementation of the MacArthur initiative should give us the opportunity to reclaim the humanity of those convicted of crimes, to provide chances for real personal transformation consistent with our Christian understanding of humanity, and to resist unjust punishments based on income and race. Philadelphia’s Prison Commissioner Louis Giorla once told Newsweek magazine that “people want the criminal justice system to fix all of our problems.” He continued, “We’ve got to take a look at what’s criminal in this country; a kid puts his hand in the shape of a gun and they say, ‘Lock him up.’” His words say to people of faith that we have abandoned the work of redemption to a system with a history of punitive practice and retaliatory justice. The MacArthur initiative is a step in the right direction.
- Harold Dean Trulear is the Director of the Healing Communities Prison Ministry and Reentry Project, Associate Professor of Applied Theology at Howard University School of Divinity, and a Fellow at the Center for Public Justice.