As Major Report Estimates 5 Million Jailed Each Year, What Now?

August 26, 2019

At any given moment, there are roughly 600,000 people languishing in local American jails. About three-quarters of them have been merely accused of a crime, and only one-third of that 75 percent stand accused of a nominally violent act.

That “snapshot” figure is a huge number of human beings. But with the transitory nature of jail populations, it still only represents a fraction of all those who have recently been incarcerated in local jails, or will be in the near future.

For the first time, analysts with the Prison Policy Initiative, an influential nonprofit research and advocacy organization, have accomplished the monumental task of figuring out how many people are churning in and out of jail in an average year. Their conservative estimate is 4.9 million people.

That’s just under one in 50 adults in the US: millions who have likely lost jobs, missed childcare responsibilities and can’t even donate blood, often needlessly.

Other major findings from the Prison Policy Initiative’s report Arrest, Release, Repeat, published on August 26, will make anyone concerned with social and racial justice recoil in disgust.

Black people constitute 13 percent of the US population, but 42 percent of those arrested and booked three or more times. 

Included among the 4.9 million people calculated, 930,000 were arrested at least twice, and 430,000 were arrested three or more times. Of those arrested and booked into jail two or more times in a given year, 49 percent make under $10,000 a year, 52 percent have been diagnosed with a substance use disorder, and 27 percent have no health insurance. Black people constitute 13 percent of the US population, but 42 percent of those arrested and booked three or more times. 

Are many of the people who see the back of a cop car several times a year particularly dangerous? Hardly⁠; 88 percent of people booked multiple times had not been arrested for a serious violent offense.

It is difficult to imagine how anyone could think this situation is acceptable (though of course, many powerful people do). So what can be done to address it?

Graphic via Prison Policy Initiative


Many of Prison Policy Initiative’s suggestions involve diverting governmental funds away from law enforcement and toward making health and social services more available instead. This makes sense when, as we have seen, the people who are getting arrested most often are desperately poor and hurting.

Unfortunately, the US political default is to not use government funds to help people, but to let charities and philanthropists decide who is worth helping instead. This is even true amongst politicians to the left of the US center, with the faked political consensus amongst 2020 presidential candidates ranging from Kamala Harris to Bernie Sanders around Medicare for All already collapsing.

The report also recommends greater collaboration and cooperation of notes between legal, medical and social work professionals, and hints at the conceptualization of criminal justice as a service sector like health care or a public housing authority.

Instead, our criminal justice system operates more like a game.

The US criminal justice system does not operate as a service. It is not primarily concerned with serving as many people as possible to their satisfaction⁠—with restoring crime victims’ sense of safety or quality of life, for example.

Instead, it operates more like a game. There’s an admission fee (court costs), so the system makes money every time it is played; it can also lose money when rules are broken (appeals and lawsuits). Prisons and jails cost a tremendous amount of money, but it is not the criminal justice system’s money. The costs of incarceration are externalized to those who drive it: namely, police and prosecutors. These players in our game are concerned chiefly with racking up the “scores” that validate their work: arrests and convictions.

Even the semantics of what we call our criminal justice offices reflect this. In England, the body that works to restrict people’s liberty is the Crown Prosecution Service. In France, that same body is the Public Prosecution Service. Our equivalent is the US Criminal Justice Division; or on the local level, often the District Attorney’s Officebut never a service.

This lack of higher values makes law enforcement is highly vulnerable to its weaponization by people of privilege wishing to cage their fellow humans as pests or nuisances. While there was volcanic social media outrage against “BBQ Becky,” who called the police on Black people for barbequing in a public space, few Americans are willing to scrutinize themselves for lesser, similar evils. Centrists of all stripes rehabilitate broken windows policing the moment they fear that their neighborhood is in decline, or just less fancy than they feel entitled to.

The fact that our criminal justice system mainly exists to satisfy itself is consistently understood by only two political constituencies: progressives and libertarians, who both want the system shrunk as much as possible. While these groups’ reactions to the social conditions associated with more crime are starkly different, their shaky alliance is behind the push to consign many of the wins of last generation’s criminal justice reformers to the dustbin of our carceral history.

Drug courts, a popular type of diversion, provide an illustrative example. The first drug court was created in Miami, Florida in 1989, and billed as a  humane way to help people overcoming addiction struggles and their families.

Now that these courts are ubiquitous and institutionalized, they have been recognized as a cynical way to increase the dragnet of criminalization. Over 90 percent of people identified as having a “substance use disorder” do not want to stop using; drug courts coerce compliance under threat of jail, as reform organizations have highlighted.

Such changes are reflected to a degree among some prosecutors. District Attorney John Creuzot of Dallas County, Texas, for example, was an old-school drug court-and-diversion aficionado back when he was a local judge.

Since being elected as DA in 2018 and embracing the new reform crowd, Creuzot shifted, quickly learning that the best way of handling certain arguably problematic behaviors, like subsistence shoplifting and marijuana misdemeanors, is to take it out of the courthouse altogether. He now argues that arrests are in themselves enough to deter people from repeating these behaviors.

However, a mere arrest gives a person a criminal record and an arrest leads to booking⁠, which means jail time before trial if someone is too poor to pay bail⁠—a scenario that helps to explain both the scale and the economic-demographic breakdown of that huge number of people cycling through jails each year.

In the absence of wider political changes, perhaps the best path for reform prosecutors is to play hardball in their state legislatures.

Efforts like Creuzot’s cooperation with local judges to reform the bail system on a piecemeal basis may help make the jail population leaner.

The other obvious thing he and other prosecutors could do is to prosecute less, adding more crimes to their non-prosecution pledges. Even then, however, many police officers would likely still arrest people because they can. That is what happened in Harris County (Houston) after DA Kim Ogg essentially decriminalized up to four ounces of marijuana.

In the absence of wider changes to US political realities, perhaps the best way Creuzot and other reform DAs to move forward is to turn the tables and play hardball in their state legislatures.

After Beto O’Rourke’s meteoric 2018 Senate run against Ted Cruz (R-Texas), pundits talked about how the down-ballot “Beto effect” gave huge payouts to local-level Democrats. What if O’Rourke, for example, were to team up with all the reform DAs in Texas⁠—Creuzot in Dallas, Ogg in Houston, Mark Gonzalez in Nueces County, Brian Middleton in Fort Bend County, and Joe Gonzales in Bexar Countyand tell any Democratic state representative that they get primaried in 2022, unless they co-sponsor a bill to make bail bonds illegal or marijuana legal?

Those five DAs themselves represent over 10 million people. Even without Beto, they could and should be a major force, and one that could be replicated in many other states.

If the elected prosecutors who dominate the criminal justice system are responsible for driving the misery and injustice that the Prison Policy Initiative’s report depicts, they, too, have the power to make immediate practical changes. They should also go beyond that to change state laws. But this will likely only happen with enough pressure from their constituents.


Photo by Bill Oxford on Unsplash

Rory Fleming

Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School's Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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