Urban Wire Pretrial Deaths in Custody Are Prevalent but Preventable
Natalie Lima, Susan Nembhard
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On October 22, Erick Tavira died by suicide on Rikers Island. He was one of 19 people who have died in pretrial custody this year in New York alone. Deaths like these do not occur in a vacuum; between 2008 and 2019, 4,998 people died while in pretrial detention—and this number only includes reports from the United States’ largest jails.

Despite the 2013 Death in Custody Reporting Act’s requirements, thousands of deaths have gone uncounted. These deaths often stem from systemic and harmful criminal legal system policies that perpetuate racial and economic disparities.

To address the preventable deaths of unconvicted people in custody, local law enforcement, departments of corrections, and state and local policymakers could limit pretrial detention by working toward bail reform and expediting court cases while improving mental and physical health care for people in custody.

What we know about pretrial detention

The pretrial population comprises 67 percent of the entire jail population in the US. People in these circumstances can be left behind bars for months or even years while still considered innocent. Pretrial detention disproportionately affects people of color, people with low incomes, and people with mental health needs.

Systemic racism in the criminal legal system results in increased involvement and related risks for people of color, particularly Black people, held in pretrial detention. Sixty percent of people who have been detained pretrial in New York City for a year or more are Black, despite making up only 24 percent of the city’s population. Similarly, making up only 5 percent of San Francisco’s population, Black people account for 50 percent of the people jailed for a year or longer.

Black people are more likely to be detained because of perceived safety or flight risk concerns. They are also more likely to be denied bail or receive higher bail amounts—making it harder to pay for their release and therefore lengthening stays in detention—and are more likely to experience bias. This leaves people of color at higher risk for outcomes related to pretrial detention, such as death in custody.

People with low incomes are also often forced to remain in custody because they can’t afford cash bail (typically $10,000) or other legal services.

Lastly, pretrial detention disproportionately harms people with mental health needs. About 17 percent of people entering pretrial detention have a serious mental illness, and 26 percent of people in jail were found to meet the criteria for serious psychological distress, compared with 5 percent in the general population. Pretrial detention creates additional harm by removing people from their communities, supports, and available resources, endangering their lives. 

What we know about pretrial death

In-custody deaths are most likely to occur during pretrial detention, not after conviction. Though the criminal legal system is built on the principle of presumption of innocence, more than 400,0000 people are detained before being found guilty of a crime and are the most at risk for dying while incarcerated.

Similar to Tavira’s needless passing, the leading cause of death in custody is suicide. About 77 percent of all people who died by suicide in jail have not been convicted of a crime. Other common causes include illness, drug overdoses, and violence.

Often lacking proper supports or suitable conditions, jails can exacerbate mental health and substance use related needs. Jail staff often are not trained to handle these issues, and when they fail to respond appropriately, they risk putting those in custody in greater harm.

What measures can prevent pretrial deaths?

State and local policymakers, departments of corrections, and local law enforcement actors, can consider the following evidence-based options to prevent pretrial deaths.

  • Increase pretrial diversion options and use

Research shows people accused of misdemeanors or nonviolent crimes and those who have technical probation violations may be less likely to reoffend and experience shorter sentences when they are able to return to their community while awaiting trial (PDF).

Policymakers interested in pretrial diversion options can start by making alternative programs more available and screen people entering the system to determine if they may be better suited to an alternative. Such programs should prioritize racial equity when making these offers so as not to exacerbate racial disparities.

  • Continue bail reform efforts

Historically, bail disproportionately affects people with low incomes and people of color and is a main driver of pretrial detention. Bail criminalizes people for their socioeconomic status, not their culpability, and research suggests bail reform is a promising strategy toward change, creating more equity and reducing deaths.

  • Expedite court cases

When people are detained for extended periods, the chance they will experience harm increases. Implementing strategies to expedite court cases can help reduce the average length of stay for people detained before trial.

Policymakers can consider implementing a jail population review team to assess the population weekly and identify those who should have already had their court date set, as well as expediting those who would be better served by programming in the community. Counties can also consider implementing policies that set a maximum length of time someone can be detained in jail before their court date.

  • Invest in health care

Adequate health care with improved mental and physical health screenings can help prevent suicide and overdose attempts. Investing in these services can help ensure necessary medical responses are available and address illness-related deaths. Extending such services to community-based organizations can also help ensure people can access them upon release.

  • Increase staff training and capacity

Jail staff trained to handle crises are more capable of responding to fatal incidents and preventing deaths in custody. The majority of jail deaths occur in the first 30 days of a person’s admission. Training staff to conduct checks every day, with particular attention to people in custody who have had risks identified via validated screening, can reduce unnecessary deaths. Introducing counselors into the jail system can help reduce the trauma people experience in jail and address mental health needs before they escalate.

There’s no need for pretrial deaths in custody to be so prevalent. Kalief Browder’s story underscores this well. A 16-year-old who was sent to Rikers for allegedly stealing a backpack, Browder was unable to pay his $10,000 bail and spent three years awaiting trial. More than 400 of those days were in solitary confinement. Throughout his detainment, he made many attempts to take his own life, and two years after his release, he died by suicide. Browder’s story, among others, highlights the urgent need for change to reduce and prevent the immediate and lasting harms experienced by those held in pretrial detention.

Evidence shows the above measures, as well as existing tools, can help prevent these outcomes and begin advancing justice and equity for those being detained.

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Research Areas Crime, justice, and safety
Tags Corrections Alternatives to incarceration Mass incarceration Courts and sentencing
Policy Centers Justice Policy Center
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