Is America Engaged In A 'Vicious Circle' Of Jailing The Poor? There are almost 12 million admissions to local jails each year in the United States. Activist Nancy Fishman says that most of those jailed are poor people who are being held for low-level offenses.


Is America Engaged In A 'Vicious Circle' Of Jailing The Poor?

  • Download
  • <iframe src="" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript


This is FRESH AIR. I'm Terry Gross. In America's ongoing debate about the criminal justice system, city and town jails get relatively little attention, even though there are nearly 12 million admissions a year. And that's nearly 19 times the admissions to state and federal prisons. As a 2015 report put it, jails are incarceration's front door. That report documents how jails have become warehouses for people too poor to pay even low bail and for people who are mentally ill, creating a downward spiral for those who are confined as well as for their families and communities.

My guest, Nancy Fishman, co-authored that report on the misuse of jails. She's the project director on sentencing and corrections at the Vera Institute of Justice. She's also working with police, judges, prosecutors and defenders to create fairer, more effective local justice systems through a project called the Safety and Justice Challenge, in which the Vera Institute and the MacArthur Foundation are partners. The project is funding 20 jurisdictions to help them develop effective ways to help keep people out of jail who don't belong there and to more effectively reintegrate people into the community after they're released from jail.

Nancy Fishman, welcome to FRESH AIR. Let's start with what the difference is between jail and prison 'cause I think a lot of people are confused about that.

NANCY FISHMAN: I think you're right. I think it isn't actually something that's in common parlance. So a prison is either a state or federal facility that houses people who have been convicted of crimes. A local jail is a little more complex. Jails hold primarily two groups of people, those who are serving short sentences, usually a year or less - some places it's longer - and those who are being held prior to - it's called pretrial - but prior to any kind of disposition on their case, a plea, a finding of guilty by a jury or a judge.

Jails also sometimes hold detainees for the immigration detention service. There are sort of people who are awaiting hearings on violations of probation. But basically, the major populations are the pretrial population and the short-sentenced population. The other thing to know is that jails are, for the most part, funded entirely locally by county and municipal governments.

GROSS: Why are you focusing on reforms in jails?

FISHMAN: Well, it's interesting. I think most people don't pay a whole lot of attention or haven't traditionally paid a whole lot of attention to jails. I think there's been increasing attention, at the national level in particular, to the need for state and federal sentencing reform, particularly around issues like mandatory minimum, some of our harsher drug laws that were passed in the 1990s. And jails have been sort of under the radar.

But the reality is that jails have - impact a huge number of Americans, in a lot of ways many more than are impacted by state prisons. So in any given year, between six and 700,000 people are admitted to state and federal prison. There are almost 12 million admissions to local jails in a given year.

That's admissions and not individuals. We estimate that represents about 9 million people. But that's a lot of people. So people who never see the inside of prisons at the federal, state level are passing through jails. And that pass through jails is not - is damaging.

GROSS: Are there typical reasons why people land in jail?

FISHMAN: Well, I think that, you know, the one thing that we know about people in jail versus people who get, for example, arrested or stopped by the police who don't end up in jail is that the people who are in jail don't have the money to pay bail. So most of the folks passing through jail, most of the admissions to jail, are for low-level offenses. They're not for serious and violent offenses.

There are people in jail who are being held for more serious crimes. But the vast majority are for nonviolent, property, sometimes drug misdemeanors, local-level violations. People end up in jail, primarily- and stay in jail primarily because they don't have the money to pay bail.

GROSS: Let's talk about the function bail is supposed to serve.


GROSS: So yeah, what is that function?

FISHMAN: The irony of bail is that its initial purpose was to make it possible for people to get out of jail - right? - that you couldn't be held in jail without a finding of guilt or prior to a finding of guilt without having an opportunity to get out. But the irony is that now bail really functions to hold people in. And in places where bail is - in a lot of jurisdictions, it's mandatory that bail be set. But if they don't want you to get out, they set, you know, multimillion-dollar bail.

But the challenge is this means that if you have money to pay bail, you can get out no matter how dangerous you are. Whereas, if you're poor and all you've committed is a traffic violation, which is one of the biggest drivers, frankly, of jail admissions in most places, you're going to sit in jail because $500 is a lot of money to you. And I think that that's one of the great travesties, frankly, of jail admissions right now, is that we have people sitting in jail for long periods simply because they can't afford to pay.

GROSS: And does that create a kind of spiral of debt?

FISHMAN: Yeah. I mean, I think a lot of places, particularly in some of the smaller jurisdictions, there's a huge network or a huge burden, frankly, of fines and fees that are associated with a jail stay or with any passage through the court system. This is something that's relatively new and has grown and grown in a lot of places.

So people, in addition to having to pay bail, they also - they're assessed a cost for their housing. So it's as if they're in a hotel, so there's a daily rate that they are responsible for. They will have to pay the cost of any lab tests associated with their case. They will have to pay the cost of drug testing.

If they apply for a public defender, a lot of places actually have a fee. You have to actually pay money to apply for a public defender who you get because you can't afford to be represented. There are other costs. People get referred into programs - drug treatment programs - or they're required to be drug tested when they're out. They have to pay for those.

They will often have to pay for the cost of probation supervision. And so you're talking about people who often come in in fragile economic situations and end up that much worse by the time they get out.

GROSS: Well, while you're paying your room and board at the jail, you're also having to pay your mortgage or your rent.


GROSS: So your expenses have just gone up because you're being incarcerated. You said a lot of these fees are fairly new. How new and what is the rationale behind charging people basically for room and board while they're being incarcerated?

FISHMAN: There's been tremendous growth over the past 40-45 years in the size of our criminal justice system - particular growth in the number of jails and the size of the jails. We've seen a fourfold increase in the jail population for the past 45 years, and along with that have been the construction of new and bigger jails.

And the reality is a lot of the communities that have built these jails don't have the funds to support them. They're not supported by state tax revenue, by federal tax revenue. They're supported by local community budgets, and a lot of these places are not wealthy. They don't have a lot of money to cover it. And so the solution has been to try to get that money from the people who pass through the system. But the challenge is most of the people who are passing through that system don't have the money either.

And so what we see is that people get assessed fines and fees - all of these fines and fees - they can't pay them. And that can end up driving them back into jail, which only increases the pressure on the jail system and the justice system overall and makes it more costly. So it's ultimately kind of a vicious circle.

GROSS: So can't you make the argument that the fees that someone in jail has to pay is a form of punishment and they're being punished before they've even been tried?

FISHMAN: Right. Most of the people sitting in jail now are pretrial. That means that they are legally innocent. It's not a technicality. It's the Constitution. We are innocent until proven guilty. I don't think people realize that most of the people sitting in jail haven't been proven guilty of anything.

And yes, it does mean that they are being forced to pay the cost of these without actually being eligible for punishment. And I think that that's part of the larger issue around jails. Jails are pretty horrible places. And a lot of people say, well, fine, we should be putting criminals in horrible places.

I don't agree with that myself, but even if that's your point of reference, it is - you know, the people sitting in jail have primarily not been convicted of anything. And I think that that is what's most striking and I think shocking to a lot of people who don't understand the way jails function.

GROSS: Now, you'd said that a lot of people who are in jail are there for traffic violations, that that's one of the major reasons. Is that like having not paid your traffic tickets? What kind of traffic violations?

FISHMAN: It's - it's, you know, being stopped for traffic violations sometimes having a suspended license because you haven't paid other fines and fees. You know, it was interesting. We just did some work in Oklahoma City and we looked at just a weeks' worth of booking into the jail from the Oklahoma City Police Department. And fully a third of the people who were booked into jail were booked on traffic violations and not DUI. Everything but DUI. We took DUI out of the mix. We're talking about just violations, you know, broken tail light, driving on a suspended license, failure to make a turn signal. Most people got three or four of them. Some of them had, again, warrants for not having paid other fines and fees. And that's sweeping them in.

And, you know, 75 percent of the people in that one week of admissions were being booked into the jail for misdemeanors or lower, so misdemeanors, violations, and only 5 percent of them were for any crimes against the person. In other words, not necessarily violent crimes but maybe something involved hitting another person, et cetera. We're still talking misdemeanors here. It's - a lot of places we work the issue of driving on a suspended license of all things is a major driver of jail admissions.

GROSS: So for people who are in jail because of traffic violations or, you know, other kind of minor things - I'm not talking about violent crime or any kind of crime against an individual. What are some of the ways in which their life might start to spiral downward as a result of being there, things that they may lose in that

FISHMAN: Right. So a lot of the folks who are in jail on things like that because they they don't have the money to get out of jail, it means they also probably don't have a lot of money for a lot of other things. You have people who have - who are in low-level jobs that are not highly secure, so they can lose their job, which means that they lose an income source for their family to support their kids.

They can - those relationships can be harmed if somebody is unable to see their kids, unable to see their family. They build greater connections with the people inside the jail than they do with the people who are out in the community, which means that those connections may sustain them when they get out, which can lead to further criminal activity.

I think they come out with, as we've talked about, huge criminal justice debt and they carry that debt with them, which impacts - and potentially also a criminal record - time spent in jail, which means that they - impacts their ability to get a job. It impacts their ability to get credit, and they are constantly under the burden of that debt. And that debt, you know, hasn't given them a new house. It hasn't given them a better education or even a really good pair of shoes.

It's just something that they're constantly going to - it's going to come out of any money that they make going forward. And they may always, if they don't pay it back, be under threat of arrest.

GROSS: Also I'm sure a lot of people in jail for those minor offenses are single parents. So there's the question of what happens to their children?

FISHMAN: Well, you know, if you're lucky, you have family who are - who can step in. But for others, they can, you know, at least even temporarily lose custody. It's incredibly traumatic for the children. And I think that you're talking about destabilizing homes, destabilizing families. It can interrupt kids' schooling. There are also - may have experienced the trauma of having a parent arrested while they were with them. I don't think that that's something that you ever forget if you're a child.

GROSS: Let's take a break here, and then we'll talk some more about jails and jail reform. My guest is Nancy Fishman. She's the project director for the Center on Sentencing and Corrections at the Vera Institute of Justice and co-author of their report, "Incarceration's Front Door: The Misuse Of Jails In America." We'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, my guest is Nancy Fishman. We're talking about jails and jail reform. She's the project director for the Center on Sentencing and Corrections at the Vera Institute of Justice. She's also working on the MacArthur Foundation's Safety and Justice Challenge, which Vera is partnering with. And she co-authored the Vera report, "Incarceration's Front Door: The Misuse Of Jails In America."

So debtors' prisons are illegal in the United States. Why are they illegal?

FISHMAN: Well, I mean, I think that - you know, I think they've been found by the Supreme Court to be in violation of the Constitution. What we have - and most places will not say that they are incarcerating someone for failure to pay. They will often - what often happens is someone doesn't pay, and that failure to pay means that they're in violation of their probation. And so they're incarcerated for being in violation of probation.

Or they're perceived - they don't show up. They don't have the money to pay, to make their payments. So they don't show up for their probation appointment. And so they're then placed in violation, or the assumption of failure to pay is deemed to be willful. And if you are - you can be incarcerated for failure to pay if it's deemed to be willful. But we don't have consistent rules about what defines willfulness. And there isn't necessarily an individualized assessment that's actually determining whether someone has willfully refused to pay.

GROSS: Are you making the argument that a lot of jails function in part as debtor prisons in spite of the fact that debtor prisons are illegal?

FISHMAN: Yeah, I mean, I think that that's something that isn't even that radical a statement to make anymore, quite honestly. Most of our jails are filled with poor people who are in jail for one way or another, many times because they can't make bail, other times because they haven't been able to pay fines and fees. But a lot of - if you trace back that - the offenses that seem to be unrelated to debt, it goes back to offenses surrounded by poverty.

And I've - frankly, I've heard this from district attorneys in jurisdictions that we work. They get this. I think that the laws are not set up and the courts are not set up to handle this better. I mean, I think that that's changing. I think there's a recognition that we cannot - I think the experience, frankly, you know, the Department of Justice's investigation into the situation on the ground in Ferguson, Mo. brought a lot of this to light. And I think what we're seeing when we go into jurisdictions is that we raise this issue that your jail is functioning as your debt collector.

And people understand that. They haven't - it takes a while to figure out what to do about that. You know, a lot of the places that use fines and fees to an excessive degree are places that also have fairly low tax revenues, either because they're in low-tax states, they don't believe in big government, or because they're small or poor communities. And so they built these big justice systems, and they don't have a way to support them.

GROSS: So what alternatives do you see to the current system of setting bail?

FISHMAN: Well, so here's the - (laughter) here's what is a remarkably simple response - or it seems remarkably simple - which is one of the best ways of increasing the likelihood that people will show up to court once they're released is to send them a reminder. And I think that's the first piece and that a lot of people with community ties can be released without bail. And they will show up to court if you are providing reminders to do it.

Now, I mean, the other thing to remember is that, in fact, most people, a majority of people, do show up to court dates. And when people don't show up to court, it's not, you know, this is not El Chapo sitting in the tunnels waiting for Sean Penn and the cameras to show up. These are people who live in the community. And the reasons why people don't show up to court are, you know, they can't get out of work. They have child care agreements. They forgot the appointment. They never got proper notice of the appointment. The appointment was changed. Their address was changed. And there are mechanisms that we can put in place that are actually focused on getting people back to court that don't necessarily involve bail.

I mean, the other thing that's really important here is that bail itself, money bail itself, is not a great - is not a great sorting mechanism for figuring out who should be in jail and who can be in the community while they're waiting for their trial. We know a lot more about this now than we ever did. And one of, you know, the sort of state-of-the-art in the field is to assess risk. Basically, we're talking about a tool, which is essentially a questionnaire that asks a bunch of questions, either in person or using administrative data, that can determine, using factors that increase risk of flight or predict criminal behavior when someone's out - you can make a pretty good prediction of what someone's risk level is. And then you can make a decision about who belongs in jail and who doesn't.

But you can actually - even people who have a certain amount of risk, who maybe have a prior failure to appear or they haven't had a stable address for a while but they live in the community, you can do things that mitigate that risk. You can provide reminders. You can connect them with a case manager in a pretrial services agency that keeps in touch with them during the pendency of the process. There are a lot of things that you can do to mitigate risk while not putting somebody in jail, which is expensive, detrimental. It isn't necessarily improving public safety and costs the community a whole lot.

GROSS: My guest is Nancy Fishman, project director of the Center on Sentencing and Corrections at the Vera Institute of Justice. After a short break, we'll talk more about alternatives to the jail and bail system for the mentally ill and for people accused of nonviolent crimes. Later, Ken Tucker will review the new album by Car Seat Headrest and will explain why singer-songwriter Will Toledo performs under that name. I'm Terry Gross. And this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross, back with Nancy Fishman. We're talking about how many city and town jails have become warehouses for people who are too poor to post bail and for the mentally ill. She co-wrote the report "Incarceration's Front Door: The Misuse Of Jails In America," which was published by the Vera Institute of Justice where she is the project director on Sentencing and Corrections.

She's also working with police, judges, prosecutors and defenders to create fair, more effective local justice systems. That work is part of a project called the Safety and Justice Challenge in which the Vera Institute and the MacArthur Foundation are partners.

You mentioned that a lot people who are in jail are mentally ill.


GROSS: On what kind of offenses are they typically booked?

FISHMAN: Well, I think that mental illness itself is generally not the reason why people are booked in. You know, I think about the survey that looked at people with mental illness who are in the jail. About 75 percent of them also have a substance abuse problem, so drug charges are a factor. There are a lot of people with mental illness who are chronically homeless, which means they're more subject to kind of quality of life arrests - trespassing, urinating in public, disturbing the peace. Anything that impacts people who are homeless impacts people who are mentally ill.

I think the other thing that we've seen - and I remember I was on a behavioral health task force in New York City. People with mental illness who are being charged mostly with low-level offenses, you know, they're not necessarily getting arrested and put in jail the first time out, particularly for these low-level offenses. And in big cities, that isn't happening a lot. That's more of a small jurisdiction problem. But they'll get picked up.

They may get a ticket that they don't appear for. They may get a resolution of their case that involves either probation or some set of requirements and they're not great about following through about them. They don't show up for a following court date, so they get a warrant. And so the next time they're picked up for something minor, there's a warrant on their record and they have to be - you know, they're required to be arrested and they end up in jail. And I think that that happens in a lot of places.

I mean, the other thing that we see in a bunch of places that we work is that people who are deemed incompetent to stand trial get caught in limbo. They have to be rendered competent before they can proceed with their case, but there are huge waiting lists at forensic mental health facilities, which means that they wait in jails which aren't equipped to restore competency. And jails are not good places for people with mental illness.

There are lots of people in crisis. They are loud. They are chaotic. A lot of them are overcrowded. The conditions in the buildings are often extremely bad. For somebody with a fragile mental health condition who's taken away from settings they know who may discontinue their medication if they're on it, it can cause immense crisis and trauma. And I think that that exacerbates the problem.

GROSS: So it's actually very hard for a lot of families to place their mentally ill family members in mental health facilities because you have to prove that they're a threat to themselves or to others, and that can be very hard to prove. But it sounds like it's actually easy for a mentally ill person to wind up in jail.

FISHMAN: Yeah. I mean, I think what happens, particularly in communities where there aren't community - great community mental health resources and beds in other facilities are scarce or hard to get into, something happens. You know, a family member with mental illness is making threatening gestures, is frightening people, is uncontrollable, and they call the only 24/7 service that exists in most places, and that's the police. So the police show up. And the police - they're required to do something. And if they don't have other options, what they will often do is bring someone to jail.

GROSS: You've visited a lot of jails. Give us a sense of, like, the best and the worst conditions that you've seen.

FISHMAN: Well, I sigh because, you know, the worst places are not - you know, they're not anyplace that we should keep a human being I think. And one of the places that I'm working - I talked to a judge who had never been to the jail or hadn't been to the local jail in a number of years. And he took an impromptu tour and he came out shocked. And he said I'm not sending anybody there anymore if I can help it.

You know, the overcrowded places, you have people - you walk in and you see people who are waiting, booking or processing and they're handcuffed to any surface that's available while they wait. Jails that are built for one or two people in the cell, they're triple or quadruple-celled. There are - a lot of places are overcrowded and understaffed, which is dangerous for the people who are incarcerated there but also dangerous for staff. And when staff feel fear then that's when the sort of worst behavior by staff happens as well.

You know, we're doing some work now in Oklahoma County, and I don't - you know, I'm not talking out of school because this has all been in the press. You have a jail that's holding more than twice the capacity that it was built for and because of staffing issues, you have - people are in their cells for 22, 23 hours a day. And there's no recreation space. They get out of their cells for that one to two hours and all that means is they are in a more common space and they can wait in line for a shower. So we're essentially holding people in what would in other circumstances would be considered a maximum security facility for people who are picked up on traffic violations.

And again, you may believe - you may believe that people deserve to be punished and that the purpose of jails or incarceration is punishment but they are innocent until proven guilty. And I think we often forget that there's a - the presumption of innocence, when it comes to jail, very quickly sort of slides into a presumption of guilt.

GROSS: There's been a lot of reporting on the privatization of the - of prisons in America and how the kind of, you know, prison industrial complex, as it's often referred to, has been a great, like, economic boon (ph) to the private sector. Is there anything equivalent with the growth of jails, which are more on the local level?

FISHMAN: There is not. You know, the jail facilities themselves, there isn't as much of a big push on privatization there. Where you see the private sector pushing into the sort of local criminal justice systems, one, is in the area of probation. We've seen some egregious cases coming out of Alabama and Georgia. You have local - instead of having the state or the court - local court system supervise people as an alternative to incarceration, which is what probation is, they contract out to a private probation company. And the private probation companies sell this to jurisdictions again cash-strapped local jurisdictions by saying we - you know, this will cost you nothing to supervise people because we will charge a fee to the people that we supervise.

What happens then is that they are supervising people who - again, low-level offenses, people who are not getting jail. We're talking about shoplifting, maybe getting into a fight or traffic, moving violations, things like that - cutting a check, that sort of stuff - for not a lot of money but tacked onto whatever fines and fees they owe the court and maybe some pretrial court housing fees are the fees for privatized probation. And those companies are not stupid. They collect their own fees before they collect any of the fees that are owed to the court and so suddenly people find themselves in violation of their obligations to the court even though they've been paying money because they haven't been paying all the money and the privatized company has been taking its money first.

So people then end up in violation, which means they can end up back in jail accruing more fees - fines and fees, et cetera, et cetera. And they build up even larger amounts of debt. So that's one area where privatization has sort of pushed in to local justice systems.

GROSS: If you're just joining us, my guest is Nancy Fishman. She's the project director for the Center on Sentencing and Corrections at the Vera Institute of Justice. She co-authored their report, "Incarceration's Front Door: The Misuse Of Jails In America." We're going to take a short break here and then we'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, we're talking about jails and the possibility of jail reform. My guest is Nancy Fishman, project director for the Center on Sentencing and Corrections at the Vera Institute of Justice. She is also working at the MacArthur Foundation on their Safety and Justice Challenge. She co-authored the Vera report, "Incarceration's Front Door: The Misuse Of Jails In America."

What are some of the possible reforms that you see to the jail system so that people aren't in that cycle of not being able to pay bail, and therefore staying in jail a long time, and therefore getting deeper into debt, and therefore having a record and things just kind of going downhill for them in general?

FISHMAN: There are a number of alternatives that exist throughout the local justice system for every decision that gets made that impacts the jail population. So this means the police can change what they do, who they arrest, who they send to alternatives to arrest or who they give a ticket. Prosecutors can refer people to alternative programs to divert cases instead of continuing to prosecute. Courts can use pretrial services programs instead of bail. They can release people on their own recognizance with support in the community to make sure that they show up to court. Probation and other supervisory bodies can provide alternatives to violations that send people back to jail.

There are a whole lot of different people making decisions on a regular basis. And what we've seen develop in places that are addressing the overuse of jail is that they undertake reforms at all of those places and in coordination in a kind of holistic approach.

GROSS: What are some of the fiscal and human costs of not reforming the system?

FISHMAN: Well, I'll start with the human toll because I think it's - you know, it's harder to calculate and it's infinitely more costly. As the number of people in jail has skyrocketed, you're seeing disproportionate impact on poor communities, disproportionate impact on communities of color. And the reach of the justice system into these places, particularly when it's been, in a lot of ways, massively unfairly, you see not only greater poverty in those areas, consistent, you know, in decreased health and safety in those communities, you also see the delegitimization of the justice system.

And that's - you know, sort of sounds like a big concept and why does that cause harm? Well, you know, we've seen this regularly now. People don't trust the police, and so when people believe that they're not being treated fairly, that the system is stacked against them, that they're being charged all these fines and fees and they can never comply and the system doesn't want them to comply, and that creates further harm. It means that, you know, when you have lots of people in a community who are owing money to the justice system that they can't pay - so they're in danger of warrant - they are not complying with the police. They're not reporting crime, you know, which is a big issue when there are issues like domestic violence and other things. You have communities where the police are not considered protectors. And that impacts safety in the larger - in the longer run.

And if we're investing - I mean, the cost of jails has gone up dramatically as well. And this is all local money. You know, this is money that isn't going into the services that would help people avoid the kinds of conditions that make it more likely that they will come into contact with police, that they will come in contact with the jails. So it means we're underfunding schools. We're underfunding mental health and the public health infrastructure.

I think that that's a huge cause of the harm that's being felt. It means we're not creating resources for people who are homeless. That money is all being poured into the justice system. And that's frankly why a lot of communities are saying enough. Often we get calls from jurisdictions that say we are now at the point where we either have to build a new jail at great cost or do something differently. How can we do something differently?

GROSS: So apparently, like, crime has gone down. There are fewer people who are arrested for crime than in the late '80s, early '90s. Do I have that right?


GROSS: But at the same time, the number of people landing in jail has gone up. It's - like, what accounts for that discrepancy? It seems like it should be the opposite way. If fewer people are getting arrested, there should be fewer people in jail.

FISHMAN: Well, I think people end up - and incarcerations have grown over the past 45 years because of - not necessarily related to crime and crime behavior but based on policy responses to crime. And over the past 20 or 30 years, those kinds of policy choices have changed as part of this kind of growth and the tough on crime ethos that dominated the '80s and '90s and into the 2000s.

So here's a way of illustrating that. In 1983, arrests have gone down, crime has gone down but bookings into jail haven't gone down. So in 1983, for every a hundred arrests, 51 people were booked into the jail. In 2012, for every a hundred arrests, 95 people were booked into jail.

That reflects not, you know, a surge in crime, a surge in more dangerous crime, therefore more people need to be held pretrial. That has to do with a set of decisions that are being made, the sort of normal set of decisions that are being made about responses to observed - you know, people being charged with crime. And those responses have changed, not necessarily in relation to the level of danger or the public safety risk but because we just incarcerate more people now. That's what we do. And that's - I think - that's the kind of logic that in essence we need to disrupt at this point.

GROSS: Who are you targeting? I mean, who do you go to to create reform in the way that we sentence and jail people or in how a bail is set? Who makes those decisions?

FISHMAN: Well, a lot of the decisions around bail, around who gets free, around who gets arrested, are all made at the local level. And they're all made - you know, there's not one person making - there are lots of them, which is hard. But the exciting thing about this, the - you know, what makes this a really fertile area for reform is that because those folks make those decisions, they can make different decisions. And when they make different decisions, those - you can see the impact fairly quickly. So, you know,

you mentioned we're working with MacArthur Foundation on the Safety and Justice Challenge. In those jurisdictions and other places we work, we pull together all the people who make those decisions - the police, the DA, the public defense - the court system, you know, the person who runs the jail. And we - you know, and we take a look at who's at the jail. And we look at the kinds of decisions that are being made at a very sort of - in a data-driven way and look at those decisions and see who's ending up in jail.

And part of the, you know, the first question to a group like that - and a question that's never generally asked of them as a group - is who should be in your jail? Who do you actually want in your jail? Because this is who you've got. And I haven't been in one of those discussions in which the group as a whole says, you know, there are a whole lot of people who've ended up there who - it is never our intention to use our jail that way. That is not what we think is an appropriate use of jail. So it then follows that you can say how do we do something differently?

GROSS: Well, Nancy Fishman, thank you so much for talking with us.

FISHMAN: Thank you. It's been a great pleasure.

GROSS: Nancy Fishman is the project director of the Center on Sentencing and Corrections at the Vera Institute of Justice and is working with the MacArthur Foundation on the Safety and Justice Challenge. After we take a short break, Ken Tucker will review a new album by the singer-songwriter who performs under the name Car Seat Headrest. Ken describes him as specializing in sounding mock-spontaneous. This is FRESH AIR.

Copyright © 2016 NPR. All rights reserved. Visit our website terms of use and permissions pages at for further information.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.