Two bills would mitigate the negative health outcomes of pretrial incarceration

Samuel Johnson | Tanisha Pruitt, PhD | Piet van Lier

Most Ohioans believe that we all deserve a justice system that treats everyone fairly, no matter how much money we have or the color of our skin. But on any given day in Ohio, as many as 12,600 people are incarcerated before they have even gone to trial.[1] Local judges have increased the number of people held in jail pretrial, from fewer than 3,000 in 1978. Today, those jailed pretrial often outnumber individuals serving jail time post-conviction,[2] even as overall crime rates have fallen.[3] Excessive rates of pretrial detention have contributed to growing concerns about the effectiveness and constitutionality of the current bail system.[4]

Many Ohioans are held in jail before their trials because they cannot afford the money bond needed to buy their freedom. A money bond, also known as cash or money bail, is a secured promise, usually to appear at future court dates, that requires upfront payment before an accused person can be released from jail. The result of this system is that people who can afford to pay for their release get to go home while they await trial, while those without the resources to pay must stay in jail for days, weeks or even months, until they stand trial. This system has resulted in disparities along lines of race and class, with people who can afford to pay getting out of jail, while others accused of similar crimes stay behind bars. National research has shown that 90% of people in jail pretrial are there because they cannot afford the money bond set for them by the court.[5]

Over time, judges have increasingly relied on money bail. In large urban counties across the U.S., the percentage of individuals released pretrial with financial conditions imposed by the court rose to 61% in 2009 from 37% in 1990.[6] But states and localities are beginning to reconsider this approach. Washington, D.C., which largely eliminated money bail in 1992, releases 94% of all people arrested without using money bail.[7] New Jersey virtually eliminated money bail in 2017, and in recent years other states have limited its use or now require courts to consider ability to pay before imposing bail.[8]

Money bail does little to ensure individuals appear before courts in which they are charged with crimes, one of its primary stated purposes. In Washington, D.C., nine out of 10 people return to every court appearance without having to post bail.[9] The Bail Project, a national initiative active in Cincinnati and Cleveland, posts bail for individuals to prevent incarceration and combat racial and economic disparities in the bail system.[10] The Cleveland project has reported that 95% of the individuals it has helped by posting their money bond have appeared for their court dates.[11]

Money bail also contributes to mass criminalization and undermines public safety. A Texas study that controlled for charged offense and other factors found that people detained pretrial for misdemeanors are more likely than similarly situated defendants to plead guilty and more likely to be sentenced to jail; they also receive sentences that are more than twice as long, on average, and are more likely to commit future crimes.[12]

It is in this context that a bipartisan group of policymakers in Ohio is sponsoring two companion bills, House Bill 315 and Senate Bill 182, which would write into state law a presumption for release rather than detention. These bills would require courts to make a preliminary release decision not later than 24 hours after the arrest of an accused person unless a judge or prosecutor is concerned that an individual poses a specific threat, in which case a hearing would be required within 48 hours to 72 hours.[13] This would largely eliminate the use of cash bail across the state.

Bail reform can improve health outcomes

This report lays out the research showing the negative impact of pretrial incarceration on health outcomes. Most of the research on pretrial detention focuses on economic costs and fiscal impact, with few studies examining the jarring health effects of pretrial detention on individuals and their families. The report concludes with recommendations regarding HB 315 and SB 182 and considerations related to bail reform, which would mitigate the harmful effects of pretrial incarceration.

Our research review included studies focused on mental and physical health, as well as specific populations impacted in unique ways by pretrial incarceration, including children, women, the LGBTQ+ community, and people who use illicit drugs.

Our review strongly suggests that the presumption for release contained in these bills would improve the health outcomes of Ohio residents. Because they would write into state law a presumption for release, the bills would reduce the likelihood that individuals accused of crimes, but not yet convicted, would lose their jobs, housing or custody of their children. The bills would also mitigate lasting effects of pretrial incarceration on the physical and mental health and safety of those who otherwise would be held while awaiting trial.[14]

The bills require that if conditions of release are imposed on an individual by a court, written findings must be made on the record noting why they are the least-restrictive conditions necessary. This would make it less likely that judges will make broad and subjective rulings and more likely that they will clearly state facts leading to detention, as required by the proposed legislation. This strengthens the presumption for release contained in the proposed legislation.

The bills also would reduce the population of incarcerated people in Ohio. For jails, the connection is clearest, especially in facilities that are over capacity: By reducing jail populations, the legislation would create safer conditions and better access to health services for those who are detained after a pretrial hearing or are serving jail sentences post-conviction. The COVID-19 pandemic provides the most recent evidence about how easily disease spreads in jails and prisons, with a new study finding that “millions of COVID-19 cases and tens of thousands of deaths could have been prevented by reducing jail populations.”[15] Releasing more people as they await trial, as noted above, also would reduce incarceration in the state prison system that has been chronically over capacity because individuals who are detained pretrial are more likely to be convicted than similarly charged people who are released on bond.[16]

"Ohio’s current money bond system costs our communities in ways we cannot quantify. True bail reform would promote public safety, end wealth-based detention, and allow more individuals to be at home with their families before their trial date."

Jocelyn Rosnick, ACLU

The current use of money bonds contributes to racial inequities in the criminal justice system. Data from the U.S. Department of Justice show that of the 39 most populous counties in the United States, Ohio’s Franklin County ranks 10th for high pretrial detention rates of Black people.[17] People detained pretrial in Franklin County make up 69% of the county jail population, which is higher than the national average of 63%, and higher than the state average, 57%.[18] White detainees are more likely to receive a summons versus incarceration for a criminal case compared to Black people.[19] Black detainees are least likely to be released on personal recognizance — without having to post money bail — and more likely to receive a financial bond while detained compared to their white counterparts.[20] The Supreme Court of Ohio conducted a report on the state’s jail populations and found that in 2018, the most recent published data, 49.1% of those who were incarcerated while awaiting trial were white, while 47.8% were Black.[21] Ohio‘s population is approximately 13% Black, according to the U.S. Census Bureau.[22]

Due to years of policies and practices that have excluded Black people from well-paying jobs and opportunities to build wealth, Black defendants are more likely to be economically disadvantaged, less likely to be able to post bail and more likely to spend longer times in confinement while awaiting trial.[23] Inadequate funding for court-appointed lawyers leaves many people without adequate representation; Black people among others are more likely to live in poverty and more likely to need legal assistance.[24] One study found that people with Black-sounding names received only half the callbacks that white people received when trying to find legal representation.[25] The everyday racism that Black people experience includes being disproportionately targeted by law enforcement and excluded from opportunities to access living-wage jobs and build wealth. It also causes higher rates of stress, anxiety and depression, which are likely exacerbated by pretrial detention.[26]

High rates of pretrial detention among Black people also contribute to increased incarceration rates. Research shows that a person’s race influences the amount of bail judges set, the severity of charges prosecutors bring, and the length of sentences judges impose.[27] Black and Latinx individuals are often penalized at higher rates than are their white counterparts.[28] Decreasing pretrial detention rates through methods proposed in House Bill 315 and Senate Bill 182 could therefore decrease the rates at which Black and Latinx Ohioans are impacted by the criminal legal system as a whole.

Mental and physical health

Mental health

One clear impact of pretrial incarceration is an increase in mental stressors, such as the threat of job loss, separation from family, and the trauma of incarceration. These and other environmental and personal factors can degrade the mental health of individuals who are incarcerated while they await trial.[29]

Suicide is the leading cause of jail deaths, where the death rate has grown over the past two decades.[30] Incarcerated men are three times more likely to die by suicide than men in the general population; incarcerated women are nine times more likely to die by suicide than other women.[31] Suicide rates are even worse for people detained pretrial, who are six times more likely to commit suicide than individuals who have been convicted and sentenced.[32] Dying in jail often happens within days or weeks of intake, with half of all suicides between 2000 and 2018 happening in the first nine days, compared to a median of 17 for all causes of death.[33] Part of this may be the “shock of confinement,” which takes away one’s basic sense of normalcy;[34] a U.S. Department of Justice report acknowledged that “certain features of the jail environment enhance suicidal behavior.”[35] Releasing individuals pretrial rather than keeping them in jail would likely reduce this shock by allowing individuals to adjust to the possibility of incarceration over time. Keeping more people out of jails — environments that inflict stress and trauma on impacted individuals — has clear benefits for mental health.

Ohio jails are locally funded, either at the county or municipal level, and experience high turnover in their populations. Large numbers of those incarcerated in jails need mental and physical health care, but jails typically lack the ability to provide adequate treatment.[36] The poor conditions of confinement are unbearable for many detainees, and they often plead guilty simply to be released from jail, feeding into the post-conviction system.[37] A U.S. Marshals Service investigation of the Cuyahoga County Jail in 2018 found inadequate staffing to provide mental health care for people incarcerated there.[38]

"Bail reform legislation could allow for many individuals in need of medical, psychiatric and drug treatment to be allowed to have the medications and treatment that they need. Too many languish in jail, which is not treatment and doesn't help them with their pain, psychological needs or assistance in sober living. These ignored souls have a higher recidivism rate."

Kareem Henton, Bail Project Cleveland

Physical health

Underfunding and overcrowding have led to an increase in rates of infectious diseases such as HIV and tuberculosis in jails, more than those that are in the general population.[39] (See section on COVID-19 below.) Given the rampant infections and contagions in jails, these bills would likely reduce the spread of disease. Jail populations fluctuate more often than prison populations, since people incarcerated in jails serve shorter sentences for misdemeanor crimes, are awaiting trial, or expecting release on bond. This daily coming and going increases the chance of outside contagion exposure, overcrowded jails and close living quarters. By reducing the number of detainees and the duration of detention, these bills would reduce jail overcrowding, thus limiting the spread of disease.

Furthermore, because the criminal legal system rapidly cycles in and out of jails people who do not have sufficient resources for health care, there is often inadequate time to screen and treat them for illness. Screening and treatment rarely happen in a timely fashion during pretrial detention. Not only do diseases enter jails more quickly and easily from the general public, but people who were infected in jail often carry those diseases back out to the public. Implementation of these bills and decreased detention of non-convicted people could help to avert or lessen the impact of public health crises.[40]

Risk of physical violence

Incarcerated people often experience humiliation, rape and other violent acts.[41] Incarcerated men are more likely to become victims of violence perpetrated by other incarcerated men, while women are more likely to be victimized by staff, and trans people are 10 times more likely to be victims of violence than others.[42] A study of the New York City jail system found that 66% of reported injuries were intentional, with 40% caused by inmate-on-inmate aggression.[43]

While the Cuyahoga County Jail is a clear example of ongoing problems at jails (see sidebar), conditions at the Montgomery County Jail also resulted in calls for reform. Among the problems cited in a 2019 report about the jail in Dayton were overcrowding, inmate-on-inmate attacks and lack of adequate psychiatric care.[44] Our review suggests that such problems are endemic to jails nationally and are hard to fix: A similar situation persisted with “dangerous and unacceptable conditions” at the Orleans Parish Jail in Louisiana that put the facility under a federal consent decree in 2013. Violence remained at “unacceptable levels” five years later, according to the federal monitor’s report, which documented an increase in use of force there from 2018 to 2019.[45] Horrific conditions at the Rikers Island jail complex in New York have made the news for years, with 12 deaths reported for 2021 as of September, with reports of a “surge in violence.”[46]

COVID-19

When the Coronavirus pandemic began in 2020, COVID-19 spread quickly in both jails and prisons, leading some facilities and systems to release hundreds of prisoners to save lives and resources.[47] One study of a large urban jail in the United States showed that the virus spread four times faster than in Wuhan, China, where the virus appears to have originated.[48] This has led to more than 600,000 incarcerated people contracting COVID-19. Because the weekly turnover rate in jails is 55%, this means people exposed to the virus while in jail are being put right back into the surrounding communities. Researchers have found that this has turned jails into “infectious disease incubators” and has fueled the spread of COVID-19 in the general population.[49]

Because jails face a chronic medical staff shortage, a reduction in overcrowding would free up space in the medical sector, meaning the people who are detained are likely to get at least marginally better care.[50] Creating environments where medical personnel are not overworked would make the task of providing medical care to jail populations more manageable, providing incentive for more medical providers to work in jails.

Family members of incarcerated individuals, including their children, parents and partners, are often considered “hidden victims” of the criminal legal system who are neither acknowledged nor given a platform to be heard. Those negative impacts ripple out throughout the community, into schools, neighborhoods and workplaces.

Effects on children

Pretrial detention has a particularly harsh impact on the children of those who are incarcerated. Detainees’ children often experience high rates of stress and anxiety when parents are arrested and detained, in part because of the uncertainties and changing circumstances of pretrial incarceration. The stress of trying keep up with the process and not knowing when or if their parents will be gone or return can even cause greater stress compared to longer post-conviction sentences.[51]

One study found that 7% of U.S. children experience a parent encountering the criminal legal system.[52] This increases the child’s risk for poor development and other negative health outcomes. Results from the study showed that there was evidence of increased levels of cortisol hormone levels, in other words, increased levels of stress for children who witnessed the arrest of a parent, like levels seen in individuals experiencing post-traumatic stress disorder (PTSD). Long term exposure to stress at these levels can have debilitating effects on children’s brain development, further increasing their risk for developmental delays.[53]

High stress also can cause depression in children, alcohol and substance issues that continue into adulthood, lack of self-worth, and low motivation to succeed in life. Children subjected to stress often exhibit anti-social behavior such as anxiety disorder, isolation, and aggression, which can bring them into contact with the criminal legal system themselves, perpetuating a cycle of intergenerational involvement with the system.[54] A parent’s prolonged pretrial detention can affect their child’s economic mobility, as children often experience hardship, poverty, a lack of resources for school, and decreased ability to earn a living wage as adults. As a result, educational attainment is low among children with detained parents and they are more likely to be suspended, expelled, or to drop out of school.[55]

Systemic racism’s direct impact on children is clear: In the United States, Black and Latinx children are 7.5 times and 2.3 times likely, respectively, than white children to have an incarcerated parent.[56]

Effects on women

Women are less likely to be able to afford bail because, on the whole, they are paid lower wages: 82 cents on the dollar compared to men, according to the United States Department of Labor.[57] Women are also less likely to be part of the formal labor force than are men, with women’s participation rates peaking at about 60% in the late 1990s and into the 2000s, but dropping after the 2008 recession to a September 2021 rate of just over 56% compared to nearly 68% for men.[58] Nevertheless, women are more likely to be forced to take on the financial burden of the cost of pretrial incarceration, including bail, attorney fees, and court fines and fees. This has lasting effects on families of incarcerated individuals.[59] The single-parent status of many women in jail means their incarceration can worsen strained finances and support systems.[60] When a mother is arrested or detained, children often end up in foster care and are more likely to be separated from their families than are children in foster care whose mothers are not detained.[61]

For a number of reasons, the experience of being in jail can be much more traumatic for women than for men. Women, for example, are more likely to be victims of sexual violence, by other incarcerated individuals and by jail staff.[62] Even procedures such as full-body searches or being supervised by male staff can trigger PTSD symptoms. [63]

The criminal legal system has long had a disproportionate and discriminatory impact on the LGBTQ+ community.[64] Nearly one in six transgender people, for example, has been incarcerated, including one of every two Black transgender people.[65] Strong stigma connected to their non-conforming identities means youth in this community often face family rejection and experience homelessness, leading to encounters with the criminal legal system, as well as hostility in the foster care system or from other support systems. A lack of support in education settings, along with disparate discipline and policing in schools, has given rise to the school-to-prison pipeline, which can channel LGBTQ+ youth into the juvenile system.[66] The criminalization of poverty and homelessness disproportionately affects LGBTQ+ people — particularly transgender women of color. These hardships make LGBTQ+ people more likely to resort to “survival economics” such as sex labor, which can also ensnare them in the justice system.[67]

Under the current cash bail system, courts often impose higher bail amounts on LGBTQ+ individuals because they are perceived as greater flight risks.[68] Stereotypes and inaccurate perceptions of individuals who don’t conform to norms of gender or sexuality can create a bias that they are dangerous, which also can cause high bail terms.[69] Socioeconomic status is a factor for these communities as well: Black and Pink, a national prison abolitionist organization that works primarily with LGBTQ+ people who are incarcerated, found that 74% of respondents in a national survey of people who experienced incarceration and identify as LGBTQ+ stated they had been held pretrial simply because they could not afford the bail assessed by the judge. The study also found that more than half of the respondents were held pretrial for a year or more.[70] LGBTQ+ people often experience extreme violence and health issues while being held pretrial.

Pretrial detention creates an increased likelihood of harm to the health of LGBTQ+ people who are detained. Exposure to violence, such as sexual harassment or abuse often leads to PTSD, depression, substance abuse and other mental health disorders.[71] Of those identifying as LGBTQ+, those who identify as transgender disproportionately suffer while being held pretrial. Sexual harassment and abuse most commonly occur because jails recurrently place transgender women in men’s facilities, where they experience frequent torment. Transgender individuals who are held pretrial also have difficulty accessing basic medical care, such as hormone replacement therapy.[72] Care for people living with HIV is often interrupted during pretrial detention, causing increases in viral load (blood tests that measure the amount of HIV in an individual’s blood) and decreases in CD4 count (tests that measures the number of CD4 cells in the blood). This is crucial, as CD4 cells — known as T Cells — are the white blood cells responsible for fighting infection and play an important role in immune system function. Without the necessary medication, people living with HIV are at risk of becoming extremely ill and getting infections.[73]

Nationally, 63% of people serving sentences in jails were identified as meeting the criteria for substance abuse disorder.[74] Since 2000, also at the national level, deaths of people in jail from intoxication with drugs or alcohol have risen 381%. At the median, the people who died from drugs or alcohol served only one day.[75] While there may be a difference in addiction rates between those awaiting trial in jail and those sentenced, these high rates of substance abuse and deaths occurring so soon after intake shows the prevalence of substance abuse disorder for people in jails, and substantial evidence suggests that incarceration increases risk for overdose death. Research has confirmed that overdose is the leading cause of death among people recently released from prisons and the third leading cause of deaths in custody in U.S. jails.[76]

Furthermore, research has shown a connection between increases in local jail admission rates and fatal overdose rates. A study of more than 2,600 counties found that, on average, “counties with the highest incarceration rates saw a drug mortality rate 54% higher than the rate among those with the lowest incarceration rates.”[77]

Incarceration contributes to increased overdose risk because individuals can lose tolerance to drugs while they are jailed and forced to be abstinent. Jails provide limited access to medication-assisted treatment and naloxone, and individuals may have difficulty accessing those treatments after they are released. Incarceration, whether short pretrial detention or longer post-conviction sentences, is also associated with disruptions to health care and social supports.[78] Some jails administer Vivitrol, a drug that blocks the receptors which opioids and alcohol attach to, preventing someone who uses drugs from getting any feelings of happiness from it and helping wean people from use. Many courts require drug offenders to take Vivitrol.[79] However, it is more expensive than alternatives such as Suboxone[80] and can be harder to access outside of an institutional setting.

"If we are serious about ending the overdose crisis in Ohio we must reduce incarceration and criminalization while ensuring that people have access to the evidence-based tools they need to survive, like medication-assisted treatment and community-based Narcan distribution."

Blyth Barnow, Faith in Public Life

Based on our research review, there is strong evidence that the presumption for release at the heart of House Bill 315 and Senate Bill 182 would improve Ohioans’ overall health. This would, of course, be particularly true for those who would otherwise have been incarcerated pretrial, but passing these bills and signing them into law would also have positive effects on the health and safety of Ohioans more broadly.

Our review suggests that these bills would:

• Reduce the impact of systemic racism in the criminal legal system, which currently punishes Black and brown individuals at higher rates and more severely than their white counterparts.
• Decrease the trauma of incarceration among those who cannot afford money bail and would otherwise have been jailed while awaiting trial, with ripple effects in their families and communities.
• Protect people from the spread of disease, which impacts jailed individuals more than the general population, but can also spread back out into surrounding communities because of the high turnover of jail populations and daily comings and goings of staff.
• Protect people from threats to their physical safety, which increase for those who are incarcerated pretrial.
• Shield children from the stress and anxiety that occur when their parents are arrested and detained, in part because of the uncertainties and changing circumstances of pretrial incarceration.
• Disrupt the longer-term, downstream impacts on children whose parents are incarcerated pretrial, especially their mothers. These impacts can include homelessness, depression, lower wages, poor education outcomes, substance abuse and contact with the criminal legal system.
• Reduce violence toward incarcerated members of the LGBTQ+ community and allow them to access appropriate medical care that is often not available in jail settings.
• Reduce overdose rates and improve treatment for people who are incarcerated or recently released.

For these reasons and others, the Ohio General Assembly should pass and send to Gov. DeWine for his signature the bail reform legislation pending in the Ohio House and Senate. As currently written, the presumption for release at the heart of these bills would improve health outcomes for the estimated 12,600 Ohioans who are incarcerated pretrial on any given day in our state.

How court systems implement bail reform matters

The strength of HB 315 and SB 182, as written, is the straight-forward presumption for release that does not rely on risk assessments and onerous supervision of people who are released to await trial. Among other benefits, pretrial release allows individuals the opportunity to show the court they can maintain a job.[81]

But how local courts implement these reforms also matters. The way people are released and what happens while they await trial is a hugely important factor. Even if the bills pass as introduced, counter-productive conditions imposed at the local level could weaken the impact of the legislation. For example, reform that relies on risk assessments to determine who will be released will likely replicate biases that already exist in the criminal legal system.[82] Electronic monitoring and other forms of surveillance like frequent drug testing or in-person meetings with court officials can also reduce the positive impact of bail reform by making it harder for people to keep their jobs, increasing already high stress levels and landing them back in jail if they can’t meet conditions.

Electronic monitoring devices, for example, are prone to false alerts and can make it hard for people to hold jobs.[83] This can add to stress and constitutes a form of incarceration, albeit less visible, that is growing with little regulation. Costs for individuals are also a concern, as many jurisdictions require people who wear them to pay monthly fees to cover court systems’ costs for the technology.[84] Research on pretrial monitoring finds little evidence that it is effective and may be part of what keeps people ensnared in the criminal legal system.[85]

Proven, less restrictive approaches to pretrial supervision include “behavioral nudges” like text reminders for court appearances, which have seen success in reducing failure-to-appear rates,[86] and scheduling hearings seven days a week and outside working hours.[87]

Finally, public services are the foundation of our daily lives, ensuring we have clean water to drink, our garbage is picked up, our streets are well-lit, and many other essential functions. Our state lawmakers can and must do more to meet these basic needs and build safe communities from the ground up. By properly funding our schools and health care system, we can leverage our public resources to create opportunity for everyone. Cutting support for local governments and cutting taxes for the wealthy, as many Ohio lawmakers have supported for nearly two decades, leaves our court systems less able to function and adapt, weakens communities, and makes families more vulnerable.

Signing bail reform into law, as proposed in the two bills introduced in the Ohio legislature, would be a strong, positive step that will improve the health outcomes of Ohioans, especially Black and brown members of our communities who are disproportionately impacted by pretrial incarceration and the criminal legal system.

Authors

Samuel Johnson served as a Policy Matters intern in 2021, Tanisha Pruitt is a state policy fellow, and Piet van Lier is a senior researcher.

Special thanks to Erika Anthony of the Ohio Transformation Fund, Christine Mitchell of Human Impact Partners, and Jocelyn Rosnick of the ACLU of Ohio, who read early drafts of this report.

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