North Carolina can end mass incarceration

The United States has the shameful distinction of being the world’s leading jailer, keeping more people behind bars than any other nation on earth.

Across the political spectrum, there is now a growing consensus that decades spent locking up more and more people have not made us safer, but they have exacted a devastating toll: ruining lives, dividing families, and wasting taxpayer dollars.

The American Civil Liberties Union recently released a report showing that mass incarceration is a nationwide problem, but must be fixed at the state level. North Carolina’s prison population, for example, has more than doubled between 1980 and 2016, and it’s projected to exceed capacity by 2025.

The ACLU Smart Justice Blueprint outlines how North Carolina can move away from these failed and biased policies and toward a new vision of safety and justice. Taken together, our recommendations would cut North Carolina’s jail and prison population in half, reduce racial disparities, and save more than $1 billion.

And the time is right in North Carolina to push for change. Elected officials have signaled an appetite for reform as a committee of legislators, judges, and officials consider these issues through the state Courts Commission. At a meeting on Friday, a subcommittee will focus on pretrial release and is expected to explore alternatives to jailing people who cannot afford bail before their trial.

One major driver of mass incarceration that the North Carolina Courts Commission can address is our state’s unjust and broken cash bail system. Thousands are routinely jailed before their trial not because they pose a threat to public safety, but because they cannot afford to pay the costly bail amounts that would allow them to return home. The problem is so severe that 86 percent of people sitting in North Carolina jails have not been convicted of a crime, according to the U.S. Bureau of Justice Statistics.

Money should never determine someone’s freedom. But for people arrested in North Carolina, the size of their bank account is often what determines whether they go home or whether they languish in jail for days, months, or even years, waiting for their case to go through court. Bail has created two justice systems: one for those who can pay for their freedom, and one for everyone else. That’s not how it’s supposed to work in a country where we are all presumed innocent until proven guilty.

But as leaders begin to examine pretrial release and alternatives to bail, it is important to note that not all methods of reform lead to justice for all. One cautionary example is happening now in Mecklenburg County, which recently became North Carolina’s first county to institute a risk assessment program in place of cash bail.

However, risk assessments run the danger of replicating or even exacerbating the racial disparities we see across our criminal justice system, as they rely inevitably on generalizations about identity, geography, and socioeconomic characteristics.

For example, the ACLU report illuminates massive disparities in who we incarcerate: Black men, people over the age of 50, and people with severe mental illness and substance use disorders are vastly overrepresented in jails and prisons. Pretrial release programs must be crafted and implemented in a way that addresses and reduces those disparities, and the state Courts Commission should make that an explicit goal of the working group as they move forward with any reform.

Another threat to progress is our state’s politically powerful bail bonds industry. People who can’t afford their bail are often forced to turn to these for-profit bail bonds companies that require a non-refundable fee and can trap people in years of debt. Only one other country in the world — the Philippines — allows for-profit bail operations. Companies with such a vested financial interest in our current system cannot be allowed to guide reform efforts.

Bail was originally designed to ensure that people return to court. But there are more humane and less predatory ways to do that, ranging from assistance with child care and transportation to a simple text message reminder. Except for the rare cases where a person poses a serious, clear threat, the vast majority of people who are arrested should be able to return home to their families and jobs while they await trial.

By ending cash bail, North Carolina can take a major step toward ending mass incarceration. The North Carolina Courts Commission has an opportunity to bring us one step closer to that goal, but we must hold them accountable to ensure any reform is done right.

Sarah Gillooly is the director of political strategy and advocacy for the ACLU of North Carolina.

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