Last week, freezing temperatures shocked most of Texas, a state where the bulk of people haven’t experienced extreme cold before. I now live in Dallas and grew up in the area, and in my vague memories of childhood, which were long ago indeed, I remember one year when I saw so much snow and cold. This is largely a remarkable moment in my memory because I had chickenpox and couldn’t play outside, thus revealing what a fickle and bizarre thing personal history is.
I am grateful to say that my family weathered the storm better than most. But, among those who did not do well were people inside Texas’s jails and prisons, individuals who have already suffered trauma and indignity, including a pandemic that has impacted incarcerated people at a higher rate than any other population.
Many publications have covered the horror stories of people left without edible food, potable water, and heat, including blankets and clothing that might keep a person warm. I won’t recover this territory here, but I do recommend reading this piece from the Texas Observer.
Instead, I will take the moment to think aloud about the problem of reforming jail conditions. I am personally always quite torn on the issue. I have volunteered, taught, and reported in a number of prisons and jails, and I understand that for an incarcerated person, an improvement in conditions is no small thing. At the same time, as a volunteer in prisons, I felt a great deal of conflict. In order to continue such programs, volunteers and program directors must cow-tow to the capricious orders of wardens, sheriffs, and administrators. You didn’t know which correctional officer would turn you away because they thought your pants were too tight, because your documents were stapled (those small shards of metal considered a dangerous weapon), or because, as I did once, you had an envelope with a postmark on it being used as a bookmark (all forms of postage – even used and useless— being contraband).
Beyond the bizarre and inconsistent rules (why were cigarettes once allowed in prisons and now not?), there are the human deprivations, which I think should be taken seriously as great forms of trauma sustained over a long period of time. Once, a group of my students was standing around a desk where I had put my wool hat. I asked if they were making fun of my slouchy beanie – my students often teased me good-naturedly – and one said, “I just haven’t felt anything so soft in so long.” They were prodding it so gingerly as if it might come to life. I wanted to weep, but I just went on to something else and left the hat there for the rest of the class.
I couldn’t work for the program anymore because I could no longer tolerate feeling as though I were tacitly agreeing to the rules of this cruel institution. I wanted to do something to keep people out of the institution in the first place. (Also, the rules forbade volunteers from doing advocacy or journalism.) But I also understand that the people who work inside the system, like attorneys and other volunteers and program directors, provide a necessary service.
All this is a roundabout way to say that I don’t think jails, especially county, sheriff-run jails, are really justified under any system. While sheriffs don’t decide the laws by which people are incarcerated (like how to charge people or what their bail should be), they are part of the network that benefits from the incarceration of people and how those people are held. Jails mostly hold people for short periods of time and are ill-equipped for even that purpose. But beyond the dangers of jail and the trauma of disappearing people from their homes, families, and communities for short-to-long periods of time, there is the relatively incalculable cost of humanity. Often, law enforcement and courts under-state the feeling of going to jail, minimizing it was “only” a day. I remember a judge in family court who would tell fathers being sued for non-payment for child support to “bring their toothbrush or a check” to their next court date. When I talk to other reporters, I often try to emphasize this sense to them, the feeling that you don’t matter and just how damaging this can be.
For that reason, I was excited to see a law review article called “Pretrial Detention and the Value of Liberty,” which attempts to reconcile the popular discussion of “risk” with the problem of pretrial detention. Often, I am struck with the problem of assessing risk, via a risk-assessment tool or otherwise. If you are playing a statistical game, the truth is that anyone – whatever their risk assessment “score” or the charges they face – is highly likely to return to court and not commit “new crimes,” however you define that term. The better evidence is that pretrial detention (and any detention at all) actually increases the likelihood a person will commit a crime. So, for that matter, the fewer people are incarcerated the better.
But, this is not really how the risk gets assessed. Right now most risk assessments use some combination of social-ethnographic factors plus history to produce a result, one which hasn’t been very well tested and may bear little to no link to reality. While risk assessments are intended to be a substitute for personal opinion, they can never be better than the information they are provided (and may sometimes be worse). And, even under any risk assessment tool, the “risk” at stake here is still very low. (Someone ranked “high risk” is not 90% likely to commit a crime – it’s more like 10% ish.)
The truth is that no one can really predict who will commit any crime at any given time, especially since crime (here, speaking broadly, and appreciating that “crime” is socially constructed – murder for example is not a crime when done in self-defense) is probably more opportunistic than we like to think. In their paper, Megan T. Stevenson and Sandra G. Mayson posit the example of jailing 10 people to prevent 1 armed robbery. Assuming we knew that incapacitation would work to some degree, is this a fair trade? I think that their article does a great job of looking at how to calculate risk v liberty under current law. I most appreciate that the authors put more effort into calculating the harms of pretrial incarceration through surveying people and asking them to put themselves into the shoes of being incarcerated (in lieu of imaginging the person spending the time in jail as someone else):
The survey results suggest that people view incarceration as an incredibly
harmful experience. Most would choose crime-victimization over even short jail
stints. The median respondent says that a single day in jail is as costly as a burglary,
that three days are as costly as a robbery, and that a month in jail is as costly as an
aggravated assault.
Later the authors discuss how survey respondents actually viewed incarceration:
The extremity of this risk threshold is a function of just how awful—how
costly—people believe it is to go to jail…And contemporary American
jails are not pleasant places. They are rife with violence and disease, quotidian
humiliation and pervasive fear. Whereas a crime victim has at least the sympathy
of family, neighbors and employers, a jail detainee must endure their anger and
distrust.
It’s the first survey I’ve seen that confirms many people (or a least the people responding to this survey) believe incarcarceration is intolerable, suggesting that the willingness to impose it on others is more to do with who those perceived others are.
I’m interested personally in the concept additionally of how hard it is to assess risk and thinking about the calculation of “statistical risk” versus “individual risk.”If a person is statistically more likely to steal a car for whatever reason, the law doesn’t allow for mitigation (e.g. that person was fighting tough odds). At the same time, if a person is statistically less like to commit a crime, they aren’t “more guilty” be virtue of their theoretical choice. What if a person shoplifts but there’s automatic check-out, which makes it more likely that shoplifting will happen? What if a person shoplifts and it’s an understaffed Walmart, also making the risk of theft more likely? On the other hand, what if someone steals something difficult to access, like the Crown Jewels? The law doesn’t really account for these. (You could argue that the discrimination and prejudice mitigate punishment in the real world.) But it strikes me that risk calculations are always based on a sort of nominative state of being, and not in terms of the ways in which people actually make decisions.
I would add that people are just bad at calculating risk, especially when there are multiple variables and conflicting interests. Just take a look at pandemic behavior.
Other Reading
The brilliant Jacob Kang-Brown and Jack Norton wrote a piece for the New York Review of Books on the gulag of local jails, which not only hold people pretrial but also provide a network of detention for the federal government (U.S. Marshalls and ICE). While many people focus on private prisons, this detention network is funded by the government and taxpayers, which is no less insidious.
Sheriff supports legislation for jail construction. I don’t know a lot about this legislation, but I was not shocked to see a sheriff supporting legislation that gives him more money.
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