Document Type

Article

Publication Date

2023

Abstract

In many parts of the United States, the bail system is strikingly unfair, imposing burdensome, and often unmeetable, financial conditions on pretrial liberty even for low-risk defendants. Reforms that reduce or eliminate cash bail and lower pretrial detention rates have made progress in recent years, but now face growing opposition even in generally progressive jurisdictions such as San Francisco and New York City. One source of this opposition is rising concern about crime—particularly crime associated with the unhoused, who disproportionately suffer from mental illness, including substance abuse disorder. This is not a coincidence, as one effect of a cash-bail system, underappreciated in the legal literature, is to incapacitate (i.e., “get off the streets”) indigent, mentally ill defendants. Mentally ill individuals are arrested—often for low-level misdemeanors—and repeatedly cycle through the criminal justice system, often failing to meet traditional pretrial release conditions. Indeed, three U.S. jails serve as the country’s largest psychiatric “treatment” facilities for mentally ill defendants. Pretrial justice systems that routinely jail the mentally ill thus serve as dysfunctional band-aids for inadequate mental health treatment. They mask the need for a more effective alternative, over-stretch the capacity of jails and prisons, and negatively impact mentally ill defendants through inadequate care. But despite the manifest shortcomings of this approach, it provides at least short-term relief to those affected by crime, and bail reforms that make it more difficult to “solve” the problem of mentally-ill defendants by locking up them without providing alternative solutions—or at least identifying the underlying pathologies—are at risk of significant opposition, failure, or retrenchment.

As a first step towards addressing the mutually destructive relationship between pretrial justice and mental health treatment, this Article argues for a disaggregation of mentally ill and traditional defendants within the pretrial criminal justice system in all respects: in arrest decisions, in pretrial screening, in judges’ determinations of pretrial release and conditions for release, and in data collection and reporting. Moreover, bail reformers should call for increased mental health funding to accompany reductions in pretrial detention. This will address only a small facet of the nation’s massive mental health crisis. But it will help to produce a more just bail system for all and move towards ending the cycling of mentally ill defendants through the U.S. criminal justice system.

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