America Behind Bars
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According to a 2020 report by the Prison Policy Initiative, 74% of people in American jails have not been convicted of a crime. Sometimes this is because they’re considered a flight risk or danger to society, but the majority of individuals in jail are there because they can’t afford bail. And while inside, they’re often given a choice: plead guilty and get released, or stay in jail until a trial is scheduled, and hope they’re proven innocent.
Most people take the plea bargain.
The idea that individuals are innocent until proven guilty is supposed to be at the heart of our criminal justice system. But in reality, it’s not, says Alexandra Natapoff, a professor of law at Harvard University. “We are letting the pressures of the criminal system decide who will sustain a conviction,” she says. “So we are already committed, in some terrible sense, to punishing the innocent.”
In Episode 1 of “Perception Gaps: Locked up,” our reporters explore the history of mass incarceration and the long-reaching effects it has on communities.
Editors note: This story has been updated to reflect Alexandra Natapoff’s current location. At the time of the interview she was a law professor at the University of California, Irvine. She now teaches at Harvard University.
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News Channel 11 WJHL: Both officers and inmates are at their boiling point in a jail that’s simply busting at the seams.
PBS: … in a country that incarcerates more people than anywhere else on earth…
CBS News: Experts warn that those who work and live inside U.S. jails and prisons are especially vulnerable to the coronavirus outbreak…
Senator Tom Cotton via NBC News: As for the claim we should have more empathy for criminals, I won’t even try to conceal my contempt for this idea.
CBS Sunday Morning: It is physically impossible to do social distancing in a three-foot-wide tier…
WISH TV: …the jam-packed jail is causing safety concerns for the staff and the inmates…
Samantha Laine Perfas: If the American jail and prison population were a city, it’d be the 5th largest city in the country, with almost 2.3 million Americans locked up right now. But did you know that most people in jail have not yet been proven guilty. So what’s going on?
This is Perception Gaps.
I’m Samantha Laine Perfas and this is Perception Gaps: Locked Up by the Christian Science Monitor.
Welcome to Season 2 of Perception Gaps: Locked Up. In Season 1, we looked at 10 different topics in which public perception doesn’t line up with reality. Some of the topics we explored were crime, substance use, political polarization, and poverty. If you haven’t listened, go back and do so! You can find all the episodes at csmonitor.com/perceptiongaps.
For Season 2, we’re gonna try something a little different – we’ll spend the entire season exploring one issue: mass incarceration in America.
We’ll be diving deep into the criminal justice system, and the misperceptions about history, politics, race, and the economy that contribute to our attitudes toward crime and the people within the system. We’ll explore how the coronavirus pandemic has exacerbated many of the issues we found in our early reporting. And in our final episode, we’ll look at potential solutions and where we’re seeing progress.
In this episode, we’ll explore a lot of the high level misperceptions around mass incarceration as a whole and how the U.S. got to a place of locking up more people than any other country.
So back to our perception gap. . . many people don’t know that the vast majority of people locked up in American jails have not actually been convicted of a crime. Our first guest will help us understand how this came to be.
Alexandra Natapoff: I begin the book with a story about Gail Atwater, who is a mother of two who lived in Texas, and she was the defendant in a very famous Supreme Court case named after her. Atwater vs. Lago Vista.
Sam: This is Alexandra Natapoff, professor of law at the University of California Irvine School of Law. She’s talking about her recent book, entitled “Punishment without Crime,” which looks at the United States’ misdemeanor system. The book begins with a 2001 Supreme Court case that set the stage for today.
Alexandra: In that case, Gail Atwater was driving her children very slowly around the local park in their neighborhood because her son Mac had lost a toy in the park, and she let the children out of their seat belts to look out of the window of the car, hopefully to see where the toy had fallen. She was pulled over by a police officer who arrested her for driving without a seatbelt. She was arrested, put into handcuffs in front of her children. Her children were hysterical and crying, watching their mother be arrested. She was taken to jail. She was booked, fingerprinted, held in a cell.
Sam: The thing is, Atwater never should have been held in jail at all. At the time the seatbelt offense did not carry the possibility of jail – it was 1997, and the maximum punishment in Texas for not wearing your seatbelt was a $50 fine. Atwater sued the city of Lago Vista, and the case went all the way to the Supreme Court. Her argument was:
Alexandra: This is unfair. This is unreasonable. You shouldn’t be able to arrest people and put them in jail for crimes for which they could not be incarcerated even if they were found guilty. And the Supreme Court ruled against Gail Atwater. It’s an extraordinarily important case because as you can see, it opens the door to all kinds of incarceration.
Sam: According to a 2020 report by the Prison Policy Initiative, 74 percent of people held by jails have not been convicted of a crime. And the reason is because, if they can’t afford bail (and we’ll get to that soon) people are detained pretrial while they wait for their cases to be resolved. Sometimes it’s because they’re a flight risk, or the person is believed to be a danger to society. But…
Alexandra: The vast majority of our criminal system is devoted to misdemeanors like loitering, trespassing, DUI. Some dockets include assault or domestic violence, low level theft. And our jails are filled with people who are incarcerated because they are facing low level charges. They are detained pretrial and cannot afford bail.
Sam: Does this have an impact on people who take plea bargains? How does that fit?
Alexandra: So one of the great injustices of the bail system and the low level misdemeanor system is that it exerts pressure on individuals to plead guilty because it is so costly for them to remain incarcerated. They may lose their jobs. They may have children. They may be evicted. They may face all kinds of terrible consequences. So, in effect, putting this kind of pressure on individuals to plead guilty is like an end run around the criminal system itself.
Sam: We’re a nation founded on this idea of innocent until proven guilty. Does that no longer exist in our criminal justice system?
Alexandra: The presumption of innocence, the idea that we should only punish people who have been proven guilty, is a fundamental notion of fairness that I think many people believe drives our criminal system. And in many ways, that’s just not how our criminal system works. The role of innocence and the idea that people should not be punished until they have been proven guilty all too often falls by the wayside. We are not requiring proof of anything. We are letting the pressures of the criminal system decide who will sustain a conviction. So we are already committed in some terrible sense to punishing the innocent.
Sam: Even during the best of circumstances, this is a difficult choice: To either accept a plea bargain – and admit you’re guilty of something you might not be – or sit in jail for months while awaiting trial. In that time, you could lose your home, not be able to provide for your family, and potentially receive a conviction anyway.
But during a public health crisis, the danger of locking people up pretrial becomes a matter of life and death. States are recognizing that jailing someone simply because they couldn’t pay bail results in overcrowded, unhygienic environments – which are especially concerning during a pandemic. At the beginning of the outbreak in the US, states rushed to address these issues: some states released inmates early, others set bail at $0, and others tried to reduce booking into jails. But it raises the question: if it’s now not okay to lock up folks like this before their trials, those accused of minor, non-violent offenses, why was it OK six months ago, before a pandemic broke out? This crisis has revealed a huge blind spot for many of us.
Alexandra: So part of the challenge of our criminal system is that it’s opaque. The public doesn’t actually know a lot about how it actually works. And we have ideas about who’s in prison or who’s in jail that are derived as much from popular culture and television and assumptions as they are derived from reality.
Sam: For example, prisons and jails are often referred to interchangeably, and they are wildly different. Prisons are used for felony sentences, and are what we often picture when we think of mass incarceration. Jails on the other hand, are used for all sorts of things: we use jails to house people who are serving shorter sentences, but also for those who have been arrested or are waiting for the case to be resolved. So how many Americans are having that experience?
Alexandra: 11 million people pass through American jails every year. That means over ten million people are experiencing incarceration every year.
Sam: I think it really turns things on its head when you think about what is the purpose of prison in jails, because I think many people think it is to keep the public safe. But are the people we’re locking up really keeping the public safe? And how does that misperception of the connection between who we lock up and for how long and why actually relate to public safety?
Alexandra: The majority of individuals in our prisons and jails suffer from substance abuse challenges. Very high percentages have mental health disabilities. So when we talk about who is in our prisons and jails, in many ways it’s a reflection not of terrible, dangerous people who are engaging in terrible, dangerous conduct, but people who have been failed by the social safety net, who have been failed by our health care system, who have been failed by our economic system. And we are using our prisons and jails to respond to those failures. I think one of the great mistakes that American democracy has made is to overrely on the criminal system to do all kinds of work that civic society could do in a far more positive and less destructive way.
Sam: What’s the ripple effect of locking people up who are not a danger to society?
Alexandra: When we lock someone up, we are not just burdening and punishing them. We are burdening and punishing their family, their children. We are burdening communities. We are stripping communities of their wage earners, of their potential wage earners, of their workers, of the people who could otherwise contribute. And because people do eventually, for the most part, come home, we are then burdening those same families, those same communities, when we send people home from prison and jail, having gone through that traumatic experience without the tools and support for reentry. We need to retire the idea that getting a misdemeanor conviction is petty, is no big deal. It can haunt people for a lifetime.
Sam: Nearly 11 million people pass through American jails every year, and not always because they did something worthy of being imprisoned. Each week, around 200,000 people move in and out of local jails.
The COVID-19 pandemic has cast a spotlight on this reality, revealing that our prisons and jails aren’t dark corners where we can keep the worst of the worst out of the public’s eye. Instead, these institutions are core features of our communities, our economies, and our society. This April in Ohio, 73% of inmates at Marion Correctional Institution tested positive for the coronavirus, as well as over 100 staff members. At the time, Ohio’s prison system accounted for over 20% of the state’s cases.
This left me wondering, how did we develop a system so massive that its impact reaches so far into our communities? Was it always like this?
Bruce Western: The United States 200 years ago was a pioneer in the area of social policy.
Sam: This is Bruce Western, a sociologist and the co-director of the Justice Lab at Columbia University. And what he just said is pretty interesting – despite where we are now, the beginning of the penitentiary system in the US was paved with good intentions. He’s talking about two approaches that were emerging in the 19th century: the Auburn system and the Pennsylvania system.
Bruce: One insisted really on a type of solitary confinement for people who had been convicted of crimes and the other looked more like a workhouse. And the underlying idea between both of these penitentiary systems, that people who had come into conflict with the law, who had been convicted of crimes, shouldn’t be subject to corporal punishment. Instead, they would be institutionalized. They’d be incarcerated. So initially, these were progressive social reforms. And the United States was really a pioneer.
Sam: In a nutshell: rather than physically punishing inmates for their crimes, the idea was that work and silence would give space for inmates to think about what they’d done, and repent – hence the term penitentiary. We now know that rehabilitation is so much more complex. But back then, it was progressive thinking, and the system was small.
Bruce: The idea that mass incarceration in America is historically new is really important. People who know about American criminal justice often think of the current situation as being with us forever. The very, very high incarceration rates really only emerged over the last couple of decades.
Sam: Starting in the 1970s, changes began to happen when the War on Drugs started.
[Historical audio insert, President Richard Nixon: America’s public enemy number one in the United States is drug abuse.
[Historical audio insert, President Ronald Reagan: Millions of dollars will be allocated for prison and jail facilities so that the mistake of releasing dangerous…]
Sam: And the prison and jail populations began to grow every year. Today, incarceration rates are five times higher than their historic average.
Bruce: So criminal justice policy really went through a very, very radical transformation through the 80s and 90s. Through the 1960 of course, you had tremendous progress in the expansion of particularly African American citizenship through the civil rights movement. And liberal and progressive political forces all around the country were mobilizing on behalf of civil rights.
[Historical audio insert, civil rights marching and protest sounds]
And then by the time you get to the 1970s, a political backlash has started. There was an appetite for punishment among voters, or at least certain segments of voters. And this tough on crime language, which is often highly racialized, associating the problem of crime, particularly with African American men. This becomes part of the political conversation and it’s the political impetus that’s pushing penal policy in this very punitive direction.
Sam: That political strategy continued into the 90s, with the 1994 Crime Bill passed by Democratic President Bill Clinton.
[Historical audio, President Bill Clinton: There must be no doubt about whose side we’re on. People who commit crimes should be caught, convicted, and punished. This bill puts government on the side of those who abide by the law…]
Sam: It capped a 20 year period of bipartisan consensus that being “tough on crime” was the best course of action for the U.S. The bill was focused on the federal system, which only accounted for about 10 percent of the prison system. However, one provision gave states money for prison construction if they adopted certain policies that required convicts to serve at least 85 percent of their sentences. That incentivized states to change their sentencing measures, and resulted in massive growth in state prison construction.
While this bill had enormous effects, the ideology behind it had been decades in the making.
Bruce: People often point to the crime bill as the origins of mass incarceration. I think its influence was smaller than that, but it was symbolically very important because it demonstrated that a consensus had emerged around very punitive crime policy in which a main response to the social problems of violence was incarceration.
Sam: Were there misperceptions at the time around the types of crimes that were being committed and the types of people that might be impacted by this legislation?
Bruce: I think it was well understood that this was going to have a huge effect on low income communities of color. I’m not sure there was a well-founded belief that this would solve the problem of crime in those communities. But there was certainly a belief that this was doing something. If you look at Black men born in the late 1970s, among those Black men, if they dropped out of high school, if they never finished high school, we estimate that 70 percent of them have been to prison. It’s happened at a time when crime rates are at their historically lowest level in 40 years. To me, it’s a really dramatic and tragic inequality.
Sam: Why that is… mostly boils down to extremely long sentences and trying to answer every crime problem with imprisonment, Bruce added. This approach leads to abnormally high levels of incarceration when you compare us to other parts of the world.
Bruce: There are about 60,000 people in the United States who are currently on so-called life without parole sentences. And so these are people that will never be released. In Western Europe, the number of people serving life without parole sentences, natural life sentences, they call them over there is about 50 people.
Sam: In a 2017 report, The Sentencing Project, a research and advocacy nonprofit, actually put the number at about 53,000. To be fair, there are more people in the US than in western Europe – however, if the ratio were the same as ours, they would have something like 32,000 people serving life without parole sentences, not 50.
Sam: I also think that when people hear, this person is serving life without parole, they probably a lot of people think, well, then they must have done something that’s worthy of that sentence. But when you compare us to Western Europe, then obviously that is a very, very striking difference. And it seems hard to believe that that many more people would have acted in a way worthy of that sentence and so few people in another part of the world.
Bruce: Yeah, I think you put your finger on it, right. You visit Western Europe, it’s not terribly different from the United States. America’s not sort of an utterly chaotic and violent place. So, what is different? I think there’s a connection between the emergence of mass incarceration and America’s centuries long history of racial injustice. The entire history of the African American community has been this political struggle over freedom and citizenship. And I think to be able to lock someone up for the rest of their lives, you have to dehumanize them. This long history of dehumanization, that’s the political context in which we adopt sentencing policies that send people away for the rest of their lives.
Sam: The experience of Black Americans encountering the criminal justice system is an important one, and we’ll be taking a closer look at this topic later in the season. But it’s worth noting that people of color are disproportionately put behind bars. Racism is baked into the criminal justice system, and those who are locked up are not the only ones affected.
Juleyka Lantigua-Williams: Today, 70 million Americans have a criminal record.
Sam: This is Juleyka Lantigua-Williams, founder and CEO of Lantigua Williams & Co., a full service production company. One of their podcasts is titled 70 Million, and it centers on the stories of those who have encountered the criminal justice system. I asked Juleyka, what is the effect of having 70 million Americans with criminal records?
Juleyka: Oh, it creates an incredible talent deficit for the country. And that talent deficit translates into real economic impact. So, for example, combined across all 50 states, there are something like 27,000 professional licenses for which someone with a criminal record can simply not apply for. It is an immediate deficit for the economy.
Sam: That’s not the end of it. If you have a criminal record, you’re also unable to own a home or rent without a guarantor. In some cases, it goes even further.
Juleyka: In some extreme cases, they’re not even being allowed… Like, the New York City Housing Authority does not allow someone who is returning from after serving time, to live in public housing with their own family. That’s the law.
Sam: Juleyka says their reporting digs into an issue that we talked about earlier: the idea that incarceration doesn’t affect just the individual, but the entire community.
Juleyka: One of the episodes from Season 2 this year looked at the impact specifically on Black women of having a significant other or a parent or a sibling be sent to prison for a meaningful amount of time. And Black women categorically bear the greatest burden, because they have to become the sole providers for their immediate family and often a provider for the extended family. I grew up in the South Bronx in the 80s and 90s, and I am very much aware of what happens when overnight a big brother disappears. An uncle disappears, that gets sent away.
Sam: You had mentioned that storytelling and the narrative component of people’s stories is a really big part of 70 Million. How does that approach help address some of the biggest misperceptions around those who are convicted?
Juleyka: You know, I can spew numbers at you all day long, but if I tell you the story of a woman in Texas who lost her child because they would not give her medical attention when she went into labor…
[Audio excerpt from 70 Million, Shandra Williams: And Dr. Hayes took me, took my hand, and he shook it and he grabbed it real tight and he just hugged me. The sheriff’s department was already trying to put me in handcuffs. And the lady said, he’s gone. On October 30th. They called it stillborn.]
Juleyka: …that’s going to stay with you. Right. And if I tell you the story of another woman who was in jail with her, who was in prison with her, who interviewed her and wrote down notes…
[Audio excerpt from 70 Million, Diane Wilson: I remember it was Christmas and, and I remember she came in real late at night. … The next day, her family came and picked her up, I remember that. But I did get her story.]
Juleyka: …and then 15 years later, we reunited them to show that the second woman had started a nonprofit organization to make sure that mothers in Texas were not chained to a bed during labor, and that they would receive proper medical attention…
[Audio excerpt from 70 Million, Diana Claitor: It was very easy to go into offices and say we have two bills. One is for medical care for pregnant women in jails. The other is to stop shackling them while they’re in labor and childbirth. And people would just freeze and say tell me you didn’t just say that.]
Juleyka: …that’s a story that’s going to stay with you.
Sam: From this story an organization called the Texas Jail Project came to life, and it advocates for more humane practices in the Texas county jail system. And other stories have promoted change as well. The podcast is open sourced, which means it is free for others to use, distribute, and modify – the clips you just heard came from Season 2, Episode 7. The podcast’s website also provides tool kits that show how programs like the Texas Jail Project were created, so anyone can use it as a blueprint in their own community.
Juleyka: I have seen how one person has created, you know, a chain reaction. And that’s really all it takes sometimes, just one person to say, “Enough. Something has to be done and I’m going to be the one to do it.”
Sam: We’ve talked a lot about how incarceration affects families and communities – and how many Americans experience incarceration before they’ve been convicted of a crime. So now, we’re going to hear from a couple who knows firsthand what it’s like to go through this.
Brittany Williams: We were living in Glendale Heights – so that with roughly, maybe a 30 minute drive from the city of Chicago. And we just had, it was just amazing being out there. It was amazing. You know, I love the values that I grew up with, and I knew that I could have the same with my boys.
Sam: This is Brittany Williams, an insurance broker and the mother of three boys. Her husband, Tim, teaches entrepreneurship and how to grow a business. He grew up on the West Side of Chicago, so the life they were building for themselves was very different than what he grew up with: In Glendale Heights there was less crime, better schools… they had a daycare a block away, and they lived in a neighborhood that was more of a community. So what happened in October 2017 had an enormous effect on their lives. Here’s Tim.
Tim Williams: It was actually a good day. I had just left from… me and my wife was having lunch. It was our anniversary. So I had just had lunch with my wife. I was going to the store and we were going to meet back up. But I was pulled over by police.
Sam: Tim was pulled over by the police for an act while driving. We understand that this is a vague description. But in an effort to respect the couple’s privacy and their efforts to rebuild their lives, we will not be discussing the details of their case. They did ask us to note that the charge was sealable, which means it can be kept out of public record.
After Tim was pulled over, he was immediately arrested, taken to the station, booked, and put in front of a judge. She set his bond at $100,000. Her decision gave Tim the option to await trial outside of jail – if he paid 10 percent of the total sum, or about $10,000.
Tim: I’m not quite sure how did she decide what my bond was.I wasn’t sure why I had a bond like that, but I knew I couldn’t pay that bond.
Sam: So he stayed behind bars. Back home, Brittany was searching frantically for a way to get Tim out.
Brittany: I googled every day … sorry [starts crying]… for 10 days straight to find something. And I came across their number on Google, and I called and I remember leaving a voicemail. And I can’t remember his name, but he called me back in two or three days.
Sam: Brittany had found a group called the Chicago Community Bond Fund, a nonprofit that provides funds for people who have been locked up pre-trial and can’t afford to pay their bond. The Fund paid Tim’s bail, and he was released on electronic monitoring for 10 months. But by then, he had spent 2 months in jail. He still hadn’t been convicted of anything.
Before his arrest, Tim had been the breadwinner for the family. Brittany had just had a baby and was staying at home to raise their children. So while Tim was in jail, Brittany and the kids were evicted from their home.
Brittany: It was very difficult. I did a lot of praying and just keeping my mind focused on, he’ll be home. And just knowing that I have to be strong, not just for myself, but also for the children, because now they’re, you know, questioning, where’s Dad? And, you know, what’s been going on? I felt like a failure more than anything, like I have failed my children. Here we are, going from everyone having their own space, we’re comfortable to now, living with my sister-in-law in the city of Chicago, my first time ever living in the city. So it was quite an adjustment.
Sam: After he was released on electronic monitoring, Tim still could not work – he couldn’t even go outside to take the garbage out. He was essentially a prisoner in his own home. So Brittany had to both provide for their family and take care of the children – pretty much on her own.
Then, after months of being on house arrest, Tim finally had his day in court. He was convicted, served 15 days in jail, and then spent a year on parole. Think about that: Tim served a year of punishment pretrial for a crime that merited only two weeks behind bars.
It’s been about a year since Tim’s case was finally closed. The family has been working overtime to put their lives back together.
Brittany: It took time for us to build the life we have now and we’re still thriving. We’re definitely not where we want to be as a family and as entrepreneurs. I don’t think that the justice systems understand how communities and families are torn apart. I don’t know what I would have done if I wasn’t thinking straight, because now I’m just thinking about how I’m going to provide. And just imagine so many other women or people out there who have gone through this and may not be able to emotionally bring themselves strong enough to just be decent and just get through it.
Sam: So, this episode might be a lot to process. As we reported this series, I often felt overwhelmed, especially with the coronavirus pandemic and the civil unrest sweeping the country. In many ways, these things have forced the conversation to happen with a greater sense of urgency. But almost every person we talked to for this season was hopeful that we are moving towards positive change. The thing is, we need to recognize the problems before we can start thinking about solutions. We’ll be hearing from many of the people who are contributing to progress – and sharing what we learn with you.
Thanks for listening, and we hope you’ll join us for future episodes. As I mentioned, all of Season 2 will cover perception gaps around criminal justice. Our next episode will focus on a very important part of the conversation: racial disparities in the system. We’ve got some great interviews we can’t wait for you to hear. If you’d like to stay in the loop, sign up for our newsletter at csmonitor.com/perceptiongaps. We’ll include show notes, videos, additional articles, and behind the scenes takes from the series. Again, you can sign up for it at csmonitor.com/perceptiongaps.
This episode was produced and hosted by me, Samantha Laine Perfas. It was co-reported with Henry Gass and co-produced with Jessica Mendoza, edited by Clay Collins and Noelle Swan, with additional edits provided by Dave Scott, Timmy Broderick, Em Okrepkie, Yvonne Zipp, Rebecca Asoulin, Jingnan Peng, and Nate Richards. Sound design by Morgan Anderson and Noel Flatt, with additional audio elements from the Ronald Reagan Presidential Library, Richard Nixon Foundation, William J. Clinton Presidential Library, Democracy Now, Historical Speeches TV, and the podcast 70 Million.
This podcast was produced by The Christian Science Monitor, copyright 2020.