End Mass Incarceration in Allegheny County
The term “mass incarceration” was identified by Michelle Alexander in her groundbreaking 2010 book The New Jim Crow: Mass Incarceration in the Age of Colorblindness. According to Alexander, there are more African-Americans under the control or supervision of the criminal justice system than were enslaved a decade before the Civil War began. She makes the compelling argument that:
What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than the language that we use to justify it… Rather than rely on race, we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind [i.e. employment discrimination, housing discrimination, denial of the right to vote, exclusion from jury service]… We have not ended racial caste in America; we have merely redesigned it.
The United States has 5% of the world’s overall population and 25% of its prison population. Between 1980–2010, the U.S. prison population more than quadrupled while crime rates have fluctuated and even decreased. People of color disproportionately have been impacted by this increase, which was driven by a 1,000% increase in drug convictions. According to Alexander, African-American men “constitute 80–90% of all drug offenders sent to prison” while research shows that “[p]eople of all races use and sell drugs at remarkably similar rates.
Clearly, in the U.S. we rely on arrest and incarceration far more than other developed countries. This is a systemic issue that descends from our history of institutionalized racial oppression.
Pittsburgh and Allegheny County are not exempt. Last year, African-American men in Pittsburgh were six times more likely to be arrested than White men, and were six times more likely to be charged with marijuana possession. African-American girls in Allegheny County are ten times more likely to be referred to the juvenile justice system than white girls. People of color constituted 66% of the incarcerated persons in Allegheny County Jail (ACJ) while being 13% of the overall population in Allegheny County. A recent report by Ralph Bangs, former Associate Director of the Center on Race and Social Problems at the University of Pittsburgh, concluded that “massive reform of criminal justice in the Pittsburgh area is needed” to address “deplorable” conditions for African-Americans.
As a magisterial district judge, I have been a witness to racial inequity in the criminal justice system. I have pushed back against mass incarceration, in part by eliminating my reliance on cash bail and instead relying on safer alternatives while promoting this approach. Recent studies by the ACLU of PA and the Abolitionist Law Center show that cash bail is a major source of systemic inequity in Allegheny County. Among other things, these studies show that cash bail is imposed against African-Americans at a disproportionate rate in Allegheny County.
In addition: in Allegheny County White defendants are 41% less likely than African-American defendants to be sentenced to jail for the same crime, and on average African-American defendants spend 21 more days in jail than White defendants.
Importantly, cash bail is also a source of serious public safety risks. Under a cash bail-system, dangerous people can be released just because they have access to money, while low-risk people are incarcerated just because they cannot pay. In the last twenty years there have been multiple instances in Allegheny County where defendants committed homicide while they were released on cash bail. Furthermore, studies show that pretrial incarceration increases the likelihood of recidivism. This is because even a short term of incarceration causes trauma, increases the probability of relapse, and is associated with losses of employment, housing, and child custody.
I have presided in well over 1,000 bail hearings. I have relied on cash bail in less than 1% of them, and it has been nearly two years since I have relied on cash bail at all. The data that I have compiled regarding my bail decisions has been consistent with the larger body of academic research in showing that alternatives to cash bail such as ROR, individualized non-monetary bail conditions and unsecured bail are associated with higher rates of future court appearances and lower rates of pretrial recidivism.
For example, I relied on cash bail in 2/258 cases (.08%) in 2018. This is well below the overall 28% cash bail-reliance rate in Allegheny County that was recorded by the ACLU of PA during a six-month period in 2019. The pretrial recidivism rate in these 2018 cases was 6.6% or nearly 10% lower than the 2017 average in Allegheny County. In addition, the non-appearance rate was 9.3% or nearly 4% lower than the 2017 average in Allegheny County.
This research also suggests that we could further improve these outcomes by improving pretrial release options for persons who suffer from disabilities, mental illness or addiction. For example, drug, alcohol, or mental health-related non-monetary bail conditions were involved in 82% of the cases where non-appearance or pretrial recidivism occurred. 77% of the cases where pretrial recidivism occurred involved new non-violent allegations that were drug or alcohol-related.
In the vast majority of criminal cases in Allegheny County, the accused is a low-risk person from a marginalized community, who is more likely to remain low-risk when we respond to their criminal justice involvement with individualized care and support rather than incarceration and supervision. As described in The New Jim Crow, our history predisposes us to respond to social problems involving people of color with force through criminal justice. As my approach to bail demonstrates, taking a more restorative approach is not just more humane, but it actually produces better outcomes.
Closing Allegheny County Jail
As a judge in the Court of Common Pleas, I will continue to lead efforts to end mass incarceration in Allegheny County. As part of that, I am calling for local leaders and the community to begin working together to plan for the closure of Allegheny County Jail. I believe that we should adopt the New York City (NYC) model, which involves safely reducing our incarceration rate, while at the same time creating alternatives that are more humane and more cost effective.
In 2019, I attended a conference that was hosted by the University of Pittsburgh Institute of Politics (IOP) entitled, “Repurposing Jails to Meet 21st Century Needs.” Much of the discussion revolved around the plan that NYC has developed and adopted to close the infamous Rikers Island Jail facilities by 2027.
Notably, Allegheny County Chief Executive Rich Fitzgerald presented efforts to safely reduce the incarceration rate in Allegheny County. The Honorable Jonathan Lippman, former Chief Judge of the New York, candidly referenced “the distinctly American problem of over-incarceration” while presenting on his role as Chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform, which “formed to examine the future of the Riker’s Island jail facilities in the context of systemic criminal justice reform.”
The critical need to examine the future of ACJ in “the context of systemic criminal justice system reform” or ending mass incarceration in Allegheny County is underscored by the distinctly brutal conditions in ACJ. According to the Abolitionist Law Center, compared to other jails ACJ has a high rate of suicide attempts and uses of force involving electrocution, chemical weapons, and the use of restraint chairs on pregnant women.
Consider that the incarceration rate in Allegheny County steadily increased for twenty years after ACJ opened in 1995, even though crime rates in Pittsburgh were decreasing. A combination of factors, including the pandemic and local initiatives to reduce the incarceration rate, have disrupted this growth trend. Yet the current incarceration rate in Allegheny County remains 31% higher than in NYC. For example:
- The current incarceration rate in NYC is 97 for every 100,000 residents, compared to 141 in Allegheny County
- If NYC and Allegheny County currently had the same incarceration rate, there would be 1,175 people in ACJ and not 1,717
- The plan to close the Rikers Island Jail facilities anticipates that the incarceration rate in NYC will be 56 for every 100,000 residents by 2027
- If NYC and Allegheny County were to have the same incarceration rate in 2027, there would be 675 people in ACJ
It should be clear that a mere 675 incarcerated persons would not be able to sustain the ACJ. It already costs $77/day to house someone in the ACJ. This cost likely would increase considerably with a significantly diminished incarceration rate. Ultimately, to improve the conditions of African-American communities in Pittsburgh we must commit to “massive” criminal justice reform. This means ending mass incarceration in Allegheny County by safely decreasing the incarceration rate and planning for the eventual closure of ACJ.
Demands for criminal justice reform and ending mass incarceration are inextricably connected to overcoming the living legacies of institutionalized racial oppression in the U.S. We as judges must demonstrate leadership by working to support initiatives that will improve the quality and administration of justice. As a magisterial district judge and as a judge in the Court of Common Pleas, I will continue to do my part to lead us from an era of deep reckoning with the criminal justice system, to an era of deep reconciliation, truth telling and reform.