White Collar Criminal Defense Group

Opinion: Increase in Jail Death-Rate Reveals Underlying Systemic Flaws

The United States familiarly calls itself the “land of the free,” and holds itself out as a bastion of due process and civil rights. Yet, America’s jails are guilty of the worst forms of human rights abuses imaginable. A New York Times article entitled, “Jail Is a Death Sentence for a Growing Number of Americans” recounts the horror of life in America’s jails, shedding light on the systemic failure to provide basic services and care to America’s pre-trial inmate population. It should be noted that jails house pre-trial detainees, people who are presumed innocent by our system (meaning they may not be found guilty of any crime or might be convicted of lower offenses, many of which carry no prison time at all). Many of these people are in jail because they cannot afford even the most minimal bail, and wind up staying in jail longer than any sentence that might be imposed, even if they are found guilty.

It goes without saying that pre-trial incarceration is still necessary to protect society from its most violent offenders. There is no question about that. Yet, many offenders suffer from mental health problems and drug addiction, both of which can be addressed and treated preemptively.

Nationally, the number of jail deaths have been steadily rising as jail populations have swelled to record number. As a result of this rise in numbers, exacerbated by the COVID-19 crisis, the inability of jails to care for the men and women in their care has become a true crisis. As reported by the New York Times, “from 2000 to 2019, jail deaths per capita increased by 11 percent, to 167 per 100,000. In 2019, suicide was the leading cause of death. The number of drug- and alcohol-related deaths was the highest ever recorded.”

These deaths reflect the inability of the jail system to care for the people in its custody. The jail and prison systems are the single largest provider of mental health care in the United States. Yet, there are inadequate resources available in the jails to deal with the needs of the addicted and mentally ill. Indeed, as noted by the New York Times, an emergency order was granted by a federal judge after the American Civil Liberties Union provided evidence that people with mental illness were being chained to furniture for days or left to sleep on concrete floors without access to toilets.

Similarly, jails don’t have the ability to care for individuals with standard medical conditions. For example, a young man suffering from diabetes died in a Houston jail where he was being held for a DUI when he was denied insulin. There are many stories like this across the United States providing a horrifying picture of the staggering failures of the jail system to treat its inmates humanely or safely. Indeed, these same problems plague our prison system (where people serve prison sentences once they are found guilty), which incarcerates 25% of the world’s prison population.

It is apparent that we do not have the ability to properly care for the individuals in the care and custody of our jail and prison systems. It is time for a real focus on alternatives to incarceration through all phases of the criminal justice system, including pre-trial detention. For example, increased release of pre-trial defendants during the COVID-19 crisis showed that we rely too heavily on detention and that cash-bond is largely unnecessary. In lieu of cash-bond, electronic monitoring works to ensure court appearance where needed and is much more cost-effective than pre-trial detention. It makes sense to start revamping and eliminating the cash-bond system, which has also been cited as a significant contributor to the racial disparities known to exist in the criminal justice system. 

Another problem that weighs on the jail system is the over-criminalization of petty drug offenses. The war on drugs has also been a war on people and entire communities, tearing families apart and causing cycles of recidivism and poverty. No doubt, the violent gangs and major drug traffickers need to be separated from society. However, the treatment of addiction goes hand in hand with mental health treatment and would be a far more effective and beneficial answer for low level drug users and dealers who sell to maintain their habits. If community treatment facilities and more drug courts were properly implemented and funded, jail populations could be significantly reduced.

Critics argue that preventive programs are too costly. However, jailing people is also very expensive. The average cost of holding a person in jail is over $34,000 per year, and costs are steadily rising. Thus, increased focus on community mental health programs, in conjunction with alternatives to pre-trial detention, would be a better use of resources than increasing the number of jails, which simply continues the problematic cycle.

As a society, we cannot tolerate the inhumane treatment of people in our care. We are at the breaking point in our system, caused largely by the “lock em up” mentality which has thrown wood on an ever-growing fire. It’s time to reallocate resources to mental health and drug treatment to prevent crime. We must also stop utilizing detention as a simple cure-all throughout the justice system. We can no longer take the moral high-ground on humanitarian and due process issues if we do not address these fundamental flaws in our system of “justice.”

Elizabeth Holmes’ Sentence Brings Into Focus The Troubles Plaguing Our Culture Of Incarceration

There has been tremendous buzz surrounding the recent sentencing of Theranos Founder Elizabeth Holmes to 11.25 years in prison. Some have argued that, in light of the life sentence suggested by the Federal sentencing guidelines, Ms. Holmes’ sentence stands as another example of the disparities faced by minority and underprivileged defendants contrasted with their white, privileged counterparts in the criminal justice system. Others argue that Ms. Holmes has been given a needlessly lengthy sentence for a first-time, non-violent offender, and point to the unfairness of the fraud-loss table as a driving force for white-collar sentences. Both arguments are valid and suggest that it is time to re-examine the goals and public policy underlying our sentencing scheme, and to revamp the manner and types of sentences that can and should be imposed.

The goals of sentencing include punishment, rehabilitation, individual deterrence, and general deterrence. For decades, the primary focus in our public discourse has been on punishment and deterrence. No leader wants to be considered “soft on crime.” As a result, the United States incarcerates roughly 25% of the world’s total prison population.

Minorities unquestionably bear the brunt of our sentencing scheme. In October 2021, The Sentencing Project, a Washington, D.C.-based research and advocacy center, found that Black Americans are incarcerated at nearly 5 times the rate of White Americans, whereas Latino Americans are imprisoned 1.3 times the rate of White Americans. This has devastating consequences on minority families and communities. Individuals released from incarceration may have difficulty gaining employment, finding safe housing and experience reduced lifetime earnings. Additionally, high levels of incarceration within communities can result in increased crime rates and contribute to neighborhood deterioration. Thus, increased rates of incarceration within minority communities have had detrimental effects on these communities as a whole and actually encourage a cycle of crime.

The disparity in sentencing in the context of race stems directly from the war on non-prescription drugs, which targeted street-based drug users and traffickers. This led to unequal prosecutorial charging decisions, disproportionate sentences for non-prescription drug-related crimes, and favored pre-trial detention in these cases. Id.

On the other hand, the problem with sentencing in white-collar fraud cases, like Ms. Holmes’, is that the Federal Sentencing Guidelines, in attempting to achieve “fairness and equality” have assigned irrational and random numerical values to “loss” that overinflates the importance of this one factor. As any seasoned practitioner knows, in today’s marketplace where fraud losses are very commonly in the hundreds of millions of dollars, these loss figures will almost always mitigate in favor of decades-long, if not life, sentences. Fraud crimes often compute to staggeringly long sentences under the guidelines, despite a lack of criminal record, and other compelling mitigating circumstances that demonstrate that the defendant is not a future threat to the community. 

The bottom-line is that by focusing on punishment (and incarceration as the sole type of punishment), we have, in fact, created the problems highlighted by both critics of Ms. Holmes’ sentence. Punishment is, of course, a valid goal of sentencing, but not to the exclusion of the other goals. Indeed, by focusing solely on punishment we have created a cycle of harm to our citizens, and communities. Studies repeatedly show that lengthy incarceration fails to promote the deterrence it is presumed to promote, neither general nor specific. Without re-focusing on rehabilitation and implementing educational and vocational training and opportunities, mental health and drug treatment, and family and career counseling, we are simply throwing our money and human resources away. A renewed focus on rehabilitation would serve as an answer to all skeptics of Ms. Holmes’ sentence. It’s time for the discussion of sentencing reform to elicit an honest discussion of our goals and a reallocation of our resources.