The Heinz Journal, Volume 16, Issue 1 | Spring 2018 by The Heinz Journal

Volume 16, Issue 1 · Spring 2018 journal.heinz.cmu.edu Editors in Chief Owen Stevenson Tobie Irvine

Acquisitions Manager Anna Vande Velde

Editors Aimen Awan Niki Deininger Nicole Gans Mehr Asma Javed Fatema Juma J. Alexander Killion Brenda Mittelbuscher Sarah Pesi Loretta Sackey Emily Snoek Mayo Sonko Tania Taloute Yiwen Wu

Improving Resident Access to Clean Water in Flint, Michigan through Critical Pipeline Repairs and Improvements

Anjali Theresa Martin

Collaborations to Reduce Malnutrition for Haitian Children

Rachel Vinciguera

Cash Bail and Poverty Natalie Crofts

The Heinz Journal is a student-run publication of the H. John Heinz III College at Carnegie Mellon University, dedicated to publishing works that link critical and theoretical analysis with policy implementation.

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We accept submissions from professionals, policy school graduate students, and members of the Pittsburgh community. Submissions and inquiries can be emailed to TheHeinzJournal@gmail.com.

Improving Resident Access to Clean Water in Flint, Michigan

Improving Resident Access to Clean Water in Flint, Michigan through Critical Pipeline Repairs and Improvements Anjali Theresa Martin University of Pittsburgh- Graduate School of Public and International Affairs (GSPIA) and School of Social Work Flint, Michigan has been without clean water for over three years, ten months, and three weeks. Despite millions of dollars raised, hundreds of thousands of water bottles donated, and numerous calls for improvements by the Michigan Governor, the President of the United States, the United Nations, and the Environmental Protection Agency, no noticeable change has been seen in the water quality for the majority of Flint residents affected by the crisis. A brief history on the Flint Water Crisis provides an understanding the role of racism and conscious efforts by the state of Michigan to hide information about dangerous conditions from a predominantly black, low-income population. With current conditions indicative of slow-moving action, this analysis examines the status quo and two alternative policies regarding the efficient use of resources, equitable distribution, and political feasibility. With one of the poorest areas in the state having the highest water rates in the country, the present climate in Flint is one of increasingly expensive bills charged to residents. These bills, coupled with high levels of home condemnation, prompted Child Protective Services to separate families due to unsafe living conditions. This type of cyclical logic only hurts Flint residents, disproportionately the lower-income families. This analysis discusses the status quo: lack of clean water, slow moving solutions to repair damaged pipelines, and concerns about use of the clean water nearby. It also discusses two policy alternatives: 1) transfer financial burden from Flint residents to city, state, and federal offices, bureaus, and organizations and 2) introduce legislation temporarily exempting Flint residents from condemnation based on water-related circumstances. Both alternatives and the status quo are assessed regarding efficient use of resources for rural residents, general residents, children; equitable distribution focused on minorities, low-income families, and political feasibility for President Trump, Governor Snyder; and likelihood of adoption for each of the three actions. The analysis concludes that the Governor, US Congress, and City of Flint should adopt legislation that temporarily halts the condemnation of homes for water-related reasons. While the first alternative would be more efficient for the residents and children of Flint, it is much less politically feasible to achieve. Both policies are relatively equal in equitable distribution, but the legislation option is an efficient use of the minimal resources available. Introduction Flint, Michigan is home to approximately 98,000 people, with 41.2% of residents living below the US poverty line.1 Located 60 miles US Census Bureau, Quick Facts - Flint city, Michigan, Accessed May 8, 2018, https://www.census.gov/quickfacts/fact/table/flintcitymichi gan/PST045216. 1

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north of Detroit, Flint has been perceived as a struggling city since the closure of the largest General Motors (GM) automobile plants in the 1980s.2 Today, the struggle of Flint’s residents is far more complicated than the auto plants: the 2

Encyclopedia Britannica, s.v. “Flint, Michigan, United States,” Accessed April 6, 2018, https://www.britannica.com/place/Flint-Michigan.

The Heinz Journal lead levels in their water continue to be dangerously high, understood as any amount reading higher than 15 parts per billion (ppb).3 This analysis presents the background of the emergency manager law, the transitory nature of the water supply for Flint residents, and the status of lead levels in the water pipes. Two alternative policies to the status quo will be discussed in terms of efficiency, equity, and political feasibility with recommendations of government action and policies.

the legislation in PA 436 a month after PA 4’s rejection, with a special clause removing public rejection as an option.7 This time, the law specified a school district as a unit of local government and gave the state discretion as to whether or not an emergency manager was needed.8 The state’s financial authority over the local government allows the state to call for and conduct a preliminary review under certain conditions, such as: the existence of other facts or circumstances that in the state treasurer’s sole discretion for a municipal government are indicative of municipal financial stress, or, that in the superintendent of public instruction’s sole discretion for a school district are indicative of school district financial stress.9

Public Act 72: Local Government Fiscal Responsibility Act of 1988 Michigan State Public Act 72 of 1988 authorized the state to “intervene in units of local government that experience financial emergencies.”4 The law was intended for state intervention in areas where local governments were failing to meet the needs of their citizens in areas such as fiscal management, public health, and citizen welfare.5 Rarely used in the 20 years between the inception of Public Act (PA) 72 and the election of Governor Rick Snyder in 2011, Public Act 4 (PA 4) increased the enforcement levels of state government authority related to “fiscal accountability of units of local governments.”6 Public Act 4 was used for a short period of time until it was rejected by Michigan voters in a 2012 referendum. Despite this, essentially the same content was passed by 3

Christopher Ingraham, “This is How Toxic Flint’s Water Really is,” Washington Post, January 15, 2016, https://www.washingtonpost.com/news/wonk/wp/2016/01/ 15/this-is-how-toxic-flints-water-really-is/?utm_term=.4a9 5be963544 4 “Emergency Manager,” State of Michigan, Accessed April 6, 2018, https://www.michigan.gov/documents/snyder/EMF_Fact_S heet2_347889_7.pdf 5 “Local Government Fiscal Responsibility Act: Act 72 of 1990,” Michigan Legislature, Accessed April 6, 2018, http://www.legislature.mi.gov/documents/Publications/repe aled/mcl-Act-72-of-1990-repealed.pdf 6 “Act No. 4,” Michigan Legislature, Accessed April 6, 2018, https://www.legislature.mi.gov/documents/2011-2012/publi cact/htm/2011-PA-0004.htm.

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In a publicly released document explaining the emergency manager law, the governor’s office reiterated that Michigan was a state in crisis due to the jobs lost during the 2007 economic recession and the option to appoint an emergency manager was a pre-emptive action which could be avoided if local governments approved an early intervention.10 Former Governor Jennifer Granholm's removal of former Detroit Mayor Kwame Kilpatrick is an often referenced example of the emergency manager law in use.11 A notable difference between the law under Governor Granholm and the changes made under Governor Snyder is that Granholm was only able to remove corrupt public officials and order financial oversight. Today, Governor Snyder can also exert control 7

Josh Hakala, “How Did We Get Here? A Look Back at Michigan’s Emergency Manager Law,” Michigan Radio, February 3, 2016, http://michiganradio.org/post/how-did-we-get-here-look-ba ck-michigans-emergency-manager-law 8 “Act No. 4,” Michigan Legislature. 9 Ibid 10 “Emergency Manager,” State of Michigan. 11 Ibid

Improving Resident Access to Clean Water in Flint, Michigan over a “wide variety of city functions…. including water supply. A Brief History of Water Access, Water Supply, and Budget Priorities in Flint (Figure 2) Figure 1: Timeline of Flint Water Crisis

Source: Robbins, Denise How Michigan and National Reporters Covered the Flint Water Crisis (February 2, 2016) https://www.mediamatters.org/research/2016/02/02/analysis-how-michigan-and-national-reporters-co/208290

On May 31, 2012, Michigan Public Radio broke a story of newly appointed Flint Emergency Manager Mike Brown searching for ways to cut the costs of the city’s financial deficit.12 With water supply coming from the Detroit River, Flint experienced a $9 million budgetary cost increase from 2006 to 2012. One such way was to combine Flint River water and Lake Huron water with less water from the Detroit River.13 Environmentalists warned against this action over concerns of the corrosiveness of Flint River water: estimated to have eight times more

chloride than Detroit River water.14 Chloride corrodes iron, the primary material of Flint’s residential water pipelines (Figure 2).15 The managing authorities of the Detroit River added a corrosion inhibitor chemical called orthophosphate to reduce the corrosion of metals.16 This addition is required by federal law for water consumed by humans and transmitted through metal pipes.

Steve Carmody, “Flint Officials are Considering Tapping the Flint River as a Source for Drinking Water,” Michigan Radio, May 31, 2012, http://michiganradio.org/post/flint-officials-are-considering -tapping-flint-river-source-drinking-water. 13 Ibid

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Siddhartha Roy, “Why is it Possible that Flint River Water Cannot be Treated to Meet Federal Standards? Flint Water Study, August 24, 2015, http://flintwaterstudy.org/tag/drinking-water/. 15 Ibid 16 Tim Carmody, “How the Flint River got so Toxic,” The Verge, February 26, 2016, http://www.theverge.com/2016/2/26/11117022/flint-michig an-water-crisis-lead-pollution-history.

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Figure 2: Corrosive Differences Between Flint River and Detroit River

*Top nail is after one month of water flowing through Detroit River pipelines. Bottom nail is after one month of water flowing through Flint River pipelines. Source: Wells, Kate Michigan Radio. Flint’s water system is falling apart. Fixing it could cost $100 million. (Aug, 9 2018) http://michiganradio.org/post/flints-water-system-falling-apart-fixing-it-could-cost-100-million

Causes of Pollution and a History of Contamination The main cause of the Flint River’s corrosive properties is not merely the presence of chloride or the absence of orthophosphate, but also over a century of pollution and dumping. The Flint River is a warmer river with less constant flow levels, which raises levels of bacteria and produces high levels of waste and other contaminants.17 The pollution of the river began to be monitored in 1934, when conservation officer Ivan Kester sent water and fish samples to the University of Michigan Institute for 17

Tim Carmody, “How the Flint River got so Toxic.”

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Fisheries Research where a lowered oxygen level was recorded. In the 1940s, so much oil was in the river that it caught on fire twice.18 A 1975 study by the Environmental Protection Agency (EPA) revealed phosphates were stimulating algae growth, collapsing the oxygen levels and turning the water from blue to brown. 19 Officially, 81 landfills and dumps in the Flint area used the river for dumping grounds, 18

“When Our Rivers Caught Fire,” Michigan Environmental Council, July 11, 2011, http://www.environmentalcouncil.org/priorities/article.php? x=264. 19 Tim Carmody, “How the Flint River got so Toxic.”

Improving Resident Access to Clean Water in Flint, Michigan contributing to the oxygen deficiency. By the 1980s, nearly all of General Motors operations in Flint were noncompliant with EPA regulations. Rather than cleaning up the mess, most of the plants closed.20 This left behind “heavy metals like arsenic, mercury, and lead, toxic solvents, volatile organic compounds (VOCs), and polynuclear aromatics (PNAs) including petroleum compound.”21 In 1999 a fiberoptic cable trench was dug through the Flint River. Construction for the trench resulted in a 6 inch wide, 5 foot long gash in a sewage pipe, releasing over 22 million gallons of raw human, industrial, residential, and commercial waste into the river.22 Direct contact with the river water was banned for 14 months after the accident. Water Supply Switch The State of Michigan took control of Flint’s finances in 2011 when an audit revealed a $25 million deficit.23 The City of Flint Utilities Department had a $9 million deficit, but officials were charging general account expenses to the water account. Looking for a way to recoup the $9 million lost from the water fund of the utilities department, a call was made by the city to determine a new water supply source.24 Switching to Lake Huron and the Karegnondi Water Authority, which manages the Flint River system, would save the city $200 million over 25 years.25 On March 25, 2013, the Flint City Council voted 7-1 to approve the move. Later, it 20

Ibid Ibid 22 Anna Maria Barry-Jester, “What Went Wrong in Flint,” FiveThirtyEight, January 26, 2016, https://fivethirtyeight.com/features/what-went-wrong-in-fli nt-water-crisis-michigan/ 23 “Flint Water Crisis Fast Facts,” CNN, November 28, 2017, http://www.cnn.com/2016/03/04/us/flint-water-crisis-fast-f acts/ 24 Ibid 25 Dominic Adams, “Flint Council Supports Buying Water from Lake Huron through KWA,” MLive, March 26, 2013, http://www.mlive.com/news/flint/index.ssf/2013/03/flint_ci ty_council_again_delay.html. 21

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would be revealed that the council did not approve the use of Flint River water, just to not use Detroit River water.26 However, in order to provide water during the transition period of access to the Detroit River and the completion of new pipelines from Flint to Lake Huron, the decision was made to use the Flint water, hoping that the past conditions would no longer be an issue.27 On April 25, 2014 the water access was switched to the Flint River.28 To help ease resident concerns, a public memo was circulated with statements of support for the water use from then-Mayor Dayne Walling and Michael Prysby, a representative of the Michigan Office of Drinking Water.29 Officials did not treat the water from the Flint River in any manner, even though the Michigan Department of Environmental Quality (MDEQ) said they would need a full year to test the water to obtain the right course of treatment.30 Experts on water quality from Virginia Tech, concerned about the rapid erosion of the pipes' protective coating, raised issues with this "wait and see" technique.31 They estimated that Flint River water was 19 times more corrosive than Detroit River water.32 The university went so far as to file a concern with the EPA, but MDEQ illegally stated Flint was using corrosion control before

Gary Ridley, “Flint Water Emails Show Flint City Council Never Approved Switch,” MLive, February 26, 2016, http://www.mlive.com/news/flint/index.ssf/2016/02/snyder s_staff_signed_off_on_ed.html. 27 Dominic Adams, “Flint City Council Approves Resolution to to buy Water from Karegnondi, State Approval Still Needed,” MLive, March 26, 2013, http://www.mlive.com/news/flint/index.ssf/2013/03/flint_ci ty_council_approves_re.html. 28 Merrit Kennedy, “Lead-Laced Water in Flint: A Step-By-Step Look at the Makings of a Crisis,” NPR, April 20, 2016 29 Ibid 30 Lindsey Smith, “After Ignoring and Trying to Discredit People in Flint, The State was Forced to Face the Problem,” Michigan Radio, December 16, 2015, http://michiganradio.org/post/after-ignoring-and-trying-disc redit-people-flint-state-was-forced-face-problem 31 Ibid. 32 “Flint Water Crisis Fast Facts,” CNN.

The Heinz Journal admitting none was actually in use.33 The EPA sent notice to the state of the dangers of not using a corrosion control, as well as the dangers of using lead pipes.

Rebecca Robbins, “New CDC Data Reveal Scope of the Flint Water Crisis,” STATNews, June 24, 2016, https://www.statnews.com/2016/06/24/flint-water-lead-crisi s-cdc-data

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Improving Resident Access to Clean Water in Flint, Michigan Misinformation, Contamination, Detrimental Effects, and Cover Up Associated with Water Supply Switch (Figure 3) Figure 3. Noticeable Water Differences Between Flint River and Detroit River

Source: Guyette, Curt, Metro Times. Flint and unexpected consequnces (April 18, 2018) https://www.metrotimes.com/detroit/flint-and-unexpected-consequences/Content?oid=11248794

Water testing continued and results indicated high levels of lead in the water, but the state altered the results, citing use of a water filter in the highest lead level homes.34 The EPA has strict rules about not altering results, but the state’s selective removal of testing results moved the rating of Flint’s lead level from well above the federal maximum to just below it. This allowed officials to continue to claim the water was safe and hold off on any improvement projects for the pipes themselves. On August 14, 2014, Flint announced that fecal coliform bacterium had been detected in the water and the city was under the first of many boil water advisories.35 On September 5, 2014, the city found another positive test for fecal coliform

bacterium and a second boil water advisory.36 In the following months, General Motors announced it stopped using water from Flint River because it corroded manufacturing machines, but the city maintained their claim that residents could safely consume the water.

Lindsey Smith, “After Ignoring and Trying to Discredit People in Flint, The State was Forced to Face the Problem.” 35

“Governor’s Office Briefing Paper: City of Flint Drinking Water, ” State of Michigan Executive Office, January 20, 2016, https://www.documentcloud.org/documents/2696071-Snyd er-Emails.html#document/p40/a3.

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On January 2, 2015, Flint was found in violation of the Safe Water Drinking Act because of high levels of trihalomethanes (TTHM), a disinfection byproduct that can cause cancer.37 The UN issued a statement condemning the actions and treatment of Flint residents and suggested an official visit to evaluate the treatment of residents and accessibility of human rights.38 Residents continued to have concerns as the water color became increasingly murky. In Detroit Free Press “Flint Water Crisis” http://www.freep.com/news/flint-water-crisis/ 37 Merrit Kennedy, “Lead-Laced Water in Flint.” 38 Todd Spangler, “UN Experts Raise Human Rights Concerns in Flint,” Detroit Free Press, May 3, 2016, http://www.freep.com/story/news/local/michigan/flint-wate r-crisis/2016/05/03/united-nations-human-right-flint/83884 390/.

The Heinz Journal April diagnoses of children with lead poisoning began to emerge. Virginia Tech invited residents to voluntarily test their water and their report was published in September 2015. Eighty-four percent of the at-home tests sent were returned with analysis revealed water with over 25 parts per billion (ppb) of lead. The allowable amount is 15 ppb but many of the homes showed 100 ppb and even 1000 ppb.39 At the same time as Virginia Tech’s warning, Dr. Mona Hanna-Attisha, the head of the Pediatric Residency program at Hurley Medical Center in Flint, announces that the percentage of children with elevated lead levels had nearly doubled since the water switch.40 Despite rising concerns and growing outrage over the water quality, the state maintained that the water was safe in January 2015. State officials rejected an offer to reconnect with Lake Huron water citing concerns over the $12 million increase in costs due to budgetary constraints. What transpired in the months between February 2015 and October 8, 2015 was a series of incidents in which the general public used media pleas and outside researchers conducted water testing, concluding the harmful and life-threatening effects of continued use of Flint River Water. In response, the government and city officials released memorandums, did publicity stunts drinking Flint’s water, and continued to deny any and all instances of issues. On October 8, 2015, Governor Snyder, who had previously stated he believed the water to be fine as informed by his staff, was notified

that three public schools had tested positive for dangerously high lead. He immediately ordered the discontinuation of reliance on Flint River water.41 Class action lawsuits, disputes over who was to blame, and orders from federal officials to “get the situation under control” resulted in a state of emergency declaration on December 14, 2015.42 The National Guard was mobilized to help distribute bottled water to residents at the request of the state and national officials. President Obama denied the governor’s request to declare Flint a disaster, citing the original costs to fix the pipes and conduct fully-compliant EPA testing would be much less than the $55 million the city now needed to install lead-free pipes throughout the city. MDEQ and the EPA feuded over priorities, access to resources, speed of bureaucracy and resolution actions, while more lawsuits were filed in January 2016. The US Congress got involved on February 1, 2016, holding hearings and investigations to determine cause, blame, and potential solutions.43 Criminal charges were filed on April 20, 2016 against government employees found to have kept crucial information about the lead levels from the public and the governor, and more criminal charges followed.44 2017 began with even more lawsuits, this time against the EPA and federal government, with the Michigan Civil Rights Commission issuing their report on systemic racism and the role of demographics in the handling of the Flint Water Crisis.45 41

“Flint Water Crisis Fast Facts.” Kennedy, “Lead-Laced Water in Flint.” 43 Matthew Daly, “House GOP quietly closes Flint, Mich. water investigation,” The Associated Press, December 16, 2016, http://bigstory.ap.org/article/1f88599ad426455f8089060dc 8d83307/dem-lawmaker-michigan-gov-snyder-stonewallin g-flint. 44 “Flint Water Crisis Fast Facts,” CNN. 45 “The Flint Water Crisis: Systemic Racism Through the Lens of Flint,” Michigan Civil Rights Commission, February 17, 2017, http://www.michigan.gov/mdcr/0,4613,7-138-47782_7796 4---,00.html. 42

Jeffrey Parks and Anurag Mantha, “Lead testing results for water sampled by residents,” Flint Water Study, September 2015, http://flintwaterstudy.org/information-for-flint-residents/res ults-for-citizen-testing-for-lead-300-kits/. 40 Sanjay Gupta, Ben Tinker, and Tim Hume, “‘Our mouths were ajar’: Doctor’s fight to expose Flint’s water crisis,” CNN, January 22, 2016, http://www.cnn.com/2016/01/21/health/flint-water-mona-h anna-attish/.

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Improving Resident Access to Clean Water in Flint, Michigan

The Current and Expected State of Water Pipes

Source: Brush, Mark Michigan Radio. MAP: Take a closer look at Flint lead testing results (February 1, 2016) http://michiganradio.org/post/map-take-closer-look-flint-lead-testing-results

Today, the investigations have been closed. The US House of Representatives, in their dismissal of the hearings in 2016, stated that the state had been slow to act and should have done better adhering to federal/EPA guidelines. However, no official charges were brought. Blame was also assigned to the federal guideline system, with a special subcommittee finding it complicated and too outdated to accurately and efficiently respond to needs and crises at a state level.46 The bipartisan panel has different agendas moving forward: Democrats would like to see documents that Republican Governor Snyder has yet to turn over while Republicans are content to move onto the next issue.

The governor’s spokesperson has released multiple statements about the state’s commitment to find funding to fully replace all the pipes in Flint, including working with the EPA to obtain more general money.47 On March 17, 2017, the EPA announced $100 million would be directed towards infrastructure improvements in Flint, but a timeline on those funds has not been publicly released as of this analysis.48 Improvements have been made in the water quality, with the Flint River water now in compliance with federal regulations on lead and 47

Ibid "EPA Awards $100 Million To Michigan For Flint Water Infrastructure Upgrades," United State Environmental Protection Agency, 2017, https://www.epa.gov/newsreleases/epa-awards-100-million -michigan-flint-water-infrastructure-upgrades. 48

Matthew Daly, “House GOP quietly closes Flint, Mich. water investigation.”

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The Heinz Journal copper content as of January 24, 2017.49 However, residents are still cautioned against drinking the water in their own homes as it can take several months for lead and copper to flush out of the water pipe system. Flint’s new mayor, Karen Weaver, pointed out the city’s goal is to replace 6,000 of the 20,000 lead-tainted water pipes by the end of the year, as Flint does not possess the finances to replace the entire system. 50 The Legal Office of the Director of the American Civil Liberties Union did not share in the mayor’s optimism, citing that the city was still in violation of the Safe Drinking Water Act and responsible for the death of 12 people from lead-related disease and the poisoning of thousands of children.51 The Center for Disease Control continues to monitor lead levels in children and warns of the sharp increase in students who will require special education, extra medical attention, and may have other issues as they grow.52 In terms of legal action, many of the lawsuits filed in 2015 and 2016 are still under review and class action suits are likely to go forward in the coming months.53 While residents say this will help, new lawsuits were filed in November over bills demanding residents pay for the water they cannot use. Michigan Attorney General Bill Schuette has expressed his outrage over the bills residents were charged for bad quality water. Consequently, he opened an investigation as to 49

Liam Stack, “Lead Levels in Flint Water Drop, but Residents Still Can’t Drink It,” The New York Times, January 24, 2017, https://www.nytimes.com/2017/01/24/us/flint-michigan-wa ter.html?_r=0. 50 Ibid 51 Maggie Fox, “Kids After Water Switch,” NBC News, June 24, 2016, http://www.nbcnews.com/storyline/flint-water-crisis/cdc-co nfirms-lead-levels-shot-flint-kids-after-water-switch-n5984 96. 52 Rebecca Robbins, “New CDC data reveals scope of the Flint water crisis.” 53 Paul Egan, “New DEQ chart sheds light on Flint water response,” Detroit Free Press, January 26, 2016, http://www.freep.com/story/news/local/michigan/flint-wate r-crisis/2016/01/26/new-deq-chart-sheds-light-flint-water-r esponse/79339270/.

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what legal action can be taken to halt the bills. In the interim, residents must pay bills or risk the water being shut off.54 Most of the resident are also having to pay out of pocket for water bottles for cooking, cleaning, consumption, bathing, hygiene, and essentially all other areas where tap water used to be acceptable. Forty-percent of Flint’s residents live in poverty and the city’s average income dropped to $25,000 in 2016.55 City officials claim that no longer charging residents for water would be “hindering its ability to raise water rates and put[ting] liens on those delinquent on bills could push Flint toward bankruptcy.”56 Flint recently raised water rates, which are now considered to be the highest in the country, because of the crisis, forcing residents to pay three times what they were in 2012 for water they cannot use.57 Residents are threatening to not pay their bills, but this would shut off their water. Once water is turned off, houses are legally unfit for human occupation and as such, are condemned.58 Condemnation of a home sends an alert to Child Protective Services which is legally obligated under Michigan law to remove children from homes deemed unfit for human occupation, even with the conditions of the Water Crisis.59 Some have considered moving or leaving the city, which technically they are allowed to do if the 54

Lisa Riordan Seville and Tracy Connor, “Water Bills in Poisoned Flint an ‘Outrage,’ Attorney General Says,” NBC News, January 25, 2016, http://www.nbcnews.com/storyline/flint-water-crisis/waterbills-poisoned-flint-outrage-attorney-general-says-n503851 55 Ibid 56 Ibid 57 Jiquanda Johnson, “More water bil credits still a no-go for Flint utility customers,” MLive, February 27, 2017, http://www.mlive.com/news/flint/index.ssf/2017/02/water_ bill_credits_still_a_no.html 58 Auditi Guha, “Flint Residents’ Choice: ‘Pay for Your Poison’ or Have Water Shut off,” Rewire.News, February 14, 2017, https://rewire.news/article/2017/02/14/flint-residents-choic e-pay-for-poison-have-water-shut-off/. 59 “A Parent’s Guide to Working With Children’s Protective Services,” State of Michigan, Accessed Aptil 11, 2018, https://www.michigan.gov/documents/dhs/DHS-PUB-0460 _179772_7.pdf.

Improving Resident Access to Clean Water in Flint, Michigan house can pass an inspection.60 City officials say there is no law barring people from moving, despite widespread claims on social media groups, but water rights activist groups and non-profit organizations like Wateryoufightingfor says residents are reporting increasing claims of denial of sale.61 Housing prices have fallen dramatically, with mortgage payments increasing because of the danger of living in the area.62 It was recommended residents trying to sell their home disclose whether or not they are serviced by a lead-lined pipe, but as of January 29, 2016, most residents still did not know.63 Other residents have spent any savings they once had on bottled water, doctor’s visits, and lawyers.64 The current policy in Flint and from the state and national government is to keep moving forward. Money is due to be released and pipes to be fixed but a timeline is difficult to obtain. No one has taken full responsibility for the problem, and the Flint residents are left bearing the burden of actions. This is costing opportunities, money, and the health and safety of Flint’s residents. It has been over 1,500 days. Flint residents deserve a policy that works for them and that helps them improve their living conditions. At the very least, they deserve to not be charged for lead-lined water and spend what little savings they have on medication and bottled water.

The preceding discussion and historical outline regarding access to clean water and the financial priorities of the city of Flint and the State of Michigan expose several areas of concern. The primary policy objective should be equitable access to clean water either through the pipes and household tap system or through an efficient and reliable supply chain of water bottles. Given that overarching objective, there are three distinct areas of policy initiatives and goals that can be affiliated with this analysis. The first is efficiency in use of resources. Michigan is surrounded by four freshwater Great Lakes and has over 22,000 inland lakes. Access to clean water sources is possible for Flint, but the city and the state need to take the time to ensure that all options have been analyzed and discussed before starting a project or changing access points. If the pipe system is inefficient, then a supply line for water bottles, funded through state and federal initiatives, needs to be implemented. A lack of public and media concern is not a justifiable reason for residents to be without clean water after so many investigations, donation drives, federal inquiries, and state mandated changes. Efficiency of resources also refers to a greater reliance upon external experts who are not beholden to a stakeholder, as was the case in the state network itself with the EPA, Governor, and other inquiring entities.

Policy Goals 60

Dominic Adams, “Houses can be sold dring Flint water crisis, say experts,” MLive, January 29, 2016, http://www.mlive.com/news/flint/index.ssf/2016/01/can_yo u_still_sell_your_home_d.html. 61 Personal communication, February 2016 62 Julie Bosman, “Many Flint Residents Are Desperate to Leave, but See No Escape,” The New York Times, February 4, 2016, https://www.nytimes.com/2016/02/05/us/many-flint-reside nts-are-desperate-to-leave-but-see-no-escape.html. 63 Dominic Adams, “Houses can be sold during Flint water crisis, say experts.” 64 Julie Bosman, “Many Flint Residents Are Desperate to Leave, but See No Escape.”

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The second is equitable distribution. As the Michigan Civil Rights Commission states in their report published in March 2017, there is an underlying role of systemic racism that largely contributed to the response and reactions of the state and the federal government. While not a direct cause of the crisis, the evidence presented in the Commission’s report reference the extensive history Flint has with substandard housing, loose regulation enforcement, and

The Heinz Journal government policy biases.65 The report argues that if Ann Arbor, a liberal, rich college town, experienced what Flint did, the reaction would have been much faster and the attempted solutions much more lasting. The commission references a concept called environmental justice,66 in which there is a responsibility of the state and governing officials to provide equal access to all residents, rather than creating hardships for some to benefit others. The need for equitable access to clean water throughout Flint must be addressed, and there must be strict policy changes holding the government, the water authority, and other governing officials responsible for compliance with EPA regulations. The third policy goal for this analysis is political feasibility, both in terms of the likelihood of adoption for the suggested policy alternatives and the specific actors themselves. In particular, the President of the United States, the Governor of Michigan, and the current Emergency Manager of Flint are examined. It is intended that this examination of positions and the people that hold them will account for political biases, personal agendas, and likelihood of repercussions, if any, to the residents of Flint and the larger population. Obviously, these goals can be in direct conflict with one another, especially in the large picture of what the right action is and what the politically feasible option is. The right outcome is to ensure that the residents have access to clean water as quickly as possible, but it is more politically feasible to break the project down, 65

Michigan Civil Rights Commission, â&#x20AC;&#x2039;The Flint Water Crisis: Systemic Racism Through the Lens of Flint (February 17, 2017), 3, http://www.michigan.gov/documents/mdcr/VFlintCrisisRe p-F-Edited3-13-17_554317_7.pdf 66 Defined as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

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especially as a lot of the public pressure to take action in Flint has dissipated. This allows for politicians to turn their attention to other items and, as with the US Congress, essentially forget about Flint.

Proposed Alleviations of Problems The analysis presented in the remainder of this report compares the status quo, referenced above and further explained in the next section, to the following two alternatives: Transfer of Financial Burden from Flint Residents to City, State, and Federal Offices, Bureaus, and Organizations The first alternative focuses on alleviating the unreal expectations placed on residents, especially given information about the socioeconomic backgrounds of most residents in Flint, Michigan. The difficult aspect about this alternative is that Flint does not have the money to pay for the pipelines, let alone cover recurring costs of bottled water for all residents. A subsection of this policy could require that money is first spent identifying the demands of the poorest areas and residents. For this to be done correctly, either UN officials or an unaffiliated third-party organization both the government and residents can trust should identify these areas. Supply lines can then be created from federal funds, in addition to the $100 million the EPA recently authorized. Furthermore, residents should not be responsible for the increased medical costs of blood testing, which is not always covered by insurance, doctorâ&#x20AC;&#x2122;s visits, and specialist consultations. Every resident of Flint is entitled to know if they have been poisoned, the effects of that poison, and to receive adequate treatment. If the residents cannot cover related medical costs through the ACA or other private insurance, there should be a system in place that is able to handle those costs or otherwise provide

Improving Resident Access to Clean Water in Flint, Michigan treatment, screening, and medication for free to those identified as in need but unable to afford these items. While blame was never fully established, it is understood that it is not the fault of the residents for the circumstances they now face. Given their financial background, the state’s mishandling of the situation, systemic discrimination, and lack of transparency around preventative actions, the residents cannot be held financially responsible for the daily living costs they now have to cope with. Finally, any and all bills associated with the water costs needs to be paid by the government or forgiven by the state. Detroit went bankrupt and survived. Flint will have a model for success if bankruptcy is declared and federal support will be easier to obtain. The residents cannot afford the bills, bottled water fees, and health costs they are currently responsible for. Introduce Legislation Temporarily Exempting Flint Residents from Condemnation based on Water-Related Circumstances This alternative focuses on addressing concerns about losing children and breaking up families. It also attempts to address concerns raised not only by residents but by the Michigan Attorney General. The enforcement of liens does not often result in the children being removed from their homes, but if households are unable to use the water, why are they even being charged? If the homes are condemned, children are legally required to be removed from the property. From the same motivation of the first alternative suggested, the residents should not bear the consequences of the government decisions that put them in a position of extreme vulnerability. Legislation temporarily halting any condemnation actions would keep families together and give residents one less thing to worry about.

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A Comparison of the Alternatives The following discussion compares the status quo, the transferring of financial burden from Flint residents to city, state, and federal offices, bureaus, and organizations, and the introduction of legislation temporarily exempting Flint residents from condemnation based on water-related circumstances. This discussion is presented in terms of resource efficiency, equitable distribution, and political feasibility. Status Quo: Charge residents for water access despite contaminated levels, medications, and bottled water Efficiency: With the city’s limited financial resource and increasing water costs, continuing to charge residents for unusable water is an extreme waste of available resources. This current policy option is extremely low in terms of efficiency. Equity: Currently, charging residents for water they cannot use in addition to bottled water, treatment solutions, medications, and other health and hygiene related expenses disproportionately affects minorities and low-income families in Flint. The remaining effects of segregation and low household income limit the financial stability and options for families, causing many to go into debt or positions of extreme vulnerability to continue surviving. Political Feasibility: While the status quo is the current trajectory, residents are concerned about the lingering effects of inaction in Flint. Publicity and public attention has largely waned. Residents are unable to fight the system and the new priorities of the EPA makes maintaining the status quo a realistic option with little political fallout. Lawsuits may be pending as residents are now responsible for paying for water they cannot use but in terms of political fallout, little is estimated. The political feasibility of this policy option is relatively high.

The Heinz Journal

Transfer of Financial Burden from Flint Residents to City, State, and Federal Offices, Bureaus, and Organizations Efficiency: Removing the restrictions on residents to pay for their water bills, water bottles, and medical treatments allows them to focus on rebuilding their small savings accounts and investing in the economy. It also encourages all residents, including children who are the most vulnerable, to seek out treatment which will help them to recover from the effects of lead poisoning. Resident medical treatment will also allow the city to plan for future needs of its residents and help regain the lost trust among residents, city management, and government officials. Equity: This program has a mixed impact on equitable distribution for minorities but it makes a large different for low-income families who do not have the finances necessary to meet their needs as a direct result of the water crisis. Political Feasibility: Due to the high financial cost of this option for the city, state, and federal levels of government, it is unlikely that this policy alternative would be adopted. This adoption would require multiple levels of government coordination, something that is largely frowned upon in the current political climate. Furthermore, the potential for more debt to be accrued through increased spending by any level of government does not yield a balanced budget, a concept of great importance to the current governor. The political feasibility of this policy option is fairly low. Introduce Legislation Temporarily Exempting Flint Residents from Condemnation based on Water-Related Circumstances

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Efficiency: This policy alternative has the potential to be very impactful for families directly affected by condemned homes and the removal of children by Child Protective Services. The policy would have little to no effect on those without children or those who continue to pay their water bills and do not face home condemnation. The most challenging part of this policy may be passing the policy without an abundance of amendments and clauses of behaviour to the legislation itself before families are exempt and able to receive assistance. Equity: As with efficiency, only those families with children or who would lose homes through an inability to pay liens and bills would be affected. With that in mind, this would have a high impact on low-income families who are most at risk for home condemnation and child removals. Political Feasibility: This policy alternative has mixed political feasibility depending on the resident being assessed. For the City of Flint, the likelihood is low as they wish to avoid potential bankruptcy and need to continue to collect money for the water access. However, for the governor, his term is ending soon meaning he has a little more flexibility with his responses. He may support legislation that keeps families together and be less concerned about the bankruptcy potential as the city is likely to be fine until his term is over. President Trump may have mixed feelings about the solution as his opinion on municipal bankruptcy is difficult to ascertain. Overall, this policy alternative has a medium political feasibility rating. Assessment and Recommendation In summation, the current policy towards Flint’s residents and the water crisis favors the government, rather than the people. In order to best meet the needs of these people, the transfer of financial burden or the temporary exemption legislation should be implemented. Ideally, both

Improving Resident Access to Clean Water in Flint, Michigan would exist concurrently but the political feasibility and equity of the latter makes it the clear choice. These are predictions based on the extant research of how each of the alternatives would improve the status quo and achieve the stated goals. The final recommendation is directed to the State of Michigan, the governor, and the US Congress based on what is best for the residents of Flint, as requested. It is done so with the understanding that the right decision may not be the most popular or the least expensive option. However, this analysis is done with a view of human rights, the understanding of the history of water access, and accounting for the lack of transparency in the â&#x20AC;&#x153;solutionsâ&#x20AC;? attempted thus far. In a perfect world, both alternative policies would be adopted. However, given the political feasibility of the options, the introduction of legislation temporarily suspending condemnation of houses would be recommended to all parties. This recommendation is more achievable and improves the status quo. While it would be more equitable and efficient to help the residents through the policy of transferring the fiscal responsibility from the residents to the state, city, and federal government, the ability of the government organizations to handle that is not feasible. Furthermore, the short-term assistance of the legislation would result in increased federal funds for Flint through a potential declaration of bankruptcy. While not an ideal situation, a city facing one crisis after another needs to prioritize people over finances.

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The Heinz Journal

Collaborations to Reduce Malnutrition for Haitian Children Rachel Vinciguera University of Pittsburgh – Graduate School of Public and International Affairs (GSPIA) and School of Social Work Malnutrition continues to be a pressing concern for children in Haiti. It is exacerbated by extreme poverty, food insecurity, political corruption, and natural disasters. When children do not receive adequate nutrition, it has a compounding impact on their lives and, consequently, on their ability to reach their full potential as contributors to society. Governmental, non-governmental (NGO), and intergovernmental organizations (IGO) have implemented programs to address the issue of malnutrition. The following policy recommendation draws from the strengths of these three actors to create collaborative partnerships that foster a sustainable community-driven model. The policy approach focuses on supporting an already-growing database, established by the Ministry of Social Affairs and Labor (MAST), to track food insecure households in Haiti. This would provide the framework for intervention methods that have proven successful for smaller NGOs. Addressing food security issues in a multidimensional manner would help reduce malnutrition levels and move Haiti closer to eliminating hunger.

I. Introduction Haiti has the worst Global Hunger Index (GHI) score in the western hemisphere, ranking 109 out of 119 countries studied globally.1 The GHI score is based on four indicators: (1) the percentage of undernourished population, (2) the percentage of children under 5 who are wasting (low weight for height), (3) the percentage of children who are stunted (low height for age), and (4) the percentage of children who die before the age of 5. 2 Malnutrition in Haiti is directly related to food insecurity. Haiti’s food production remains low as the population grows. This is largely because donor countries import lower-priced food than what Haitians can sell locally.3 The most

International Food Policy Research Institute (IFPRI). "2017 Global Hunger Index by Severity." Ifpri.org. 2017. http://www.ifpri.org/publication/2017-global-hunger-index-se verity. 2 International Food Policy Research Institute (IFPRI). (2017). “Global Hunger Index 2017: Fact Sheet.” ifpri.org. 2017. Accessed at https://www.ifpri.org/news-release/global-hunger-index-2017 fact-sheet 3 UNICEF. Haiti: Humanitarian Situation Report, April 2017. Publication. April 2017. https://www.unicef.org/appeals/files/UNICEF_Haiti_Humanit arian_Situation_Report_April_2017.pdf.

well-known example of this is the importation of heavily-subsidized U.S. rice since 1995, resulting in Haiti importing 80% of its rice in a country with 70% farmers whose most popular cereal crop is rice (44%).4 Since the highest percentage of available jobs is in the agricultural sector, this dynamic contributes to persistent poverty and an inability to make a profit for foods grown in the country. Over one half of Haiti’s population is chronically undernourished. According to most recent data of the Food and Agriculture Organization, 22% of Haitian children under age five have stunted growth and 11% under age five are underweight.5 UNICEF estimates that an additional 18,000 children (1.5% of those under age 5) experienced

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O’Connor, M. (2013). “Subsidizing Starvation: How American tax dollars are keeping Arkansas rice growers fat on the farm and starving millions of Haitians.” Foreign Policy. http://foreignpolicy.com/2013/01/11/subsidizing-starvation/ 5 WFP, FAO, & IFAD. The State of Food Insecurity in the World: Strengthening the enabling environment for food security and nutrition. Publication. World Food Programme (WFP), Food and Agriculture Organization of the United Nations (FAO) & International Fund for Agricultural Development (IFAD), 2014. http://www.fao.org/3/a-i4030e.pdf. 4

Collaborations to Reduce Malnutrition in Haitian Children severe acute malnutrition after Hurricane Matthew in November 2017.6 In addition to physical affects, the adverse effects of malnutrition also cause developmental delays which limit children’s ability to learn effectively in the classroom and may cause behavioral problems such as aggression, social isolation, and tantrums.7 These results have negative impacts on the academic outcomes of youth throughout schooling and later in the national workforce.8 The prevalence of malnutrition, if unaddressed, will affect Haiti’s ability to achieve the targets of several Sustainable Development Goals (SDG), as outlined by the United Nations as poverty reduction goals for countries to achieve between 2015 and 2030. Malnutrition affects Haiti’s ability to meet, not only SDG 2 (end hunger), but also SDG 4 (education), SDG 3 (health and well-being), SDG 7 (decent work and economic growth) and SDG 10 (reduced inequalities). More significantly, malnutrition prevents Haiti from achieving the economic success that requires a healthy, educated population.

II. Ongoing Attempts to Reduce Malnutrition Government entities, NGOs, and IGOs have each attempted to address food insecurity and malnutrition in different ways with varied success. These attempts have been complicated by corrupt governance, increasing food imports, and natural disasters. Governmental, Non-Governmental, and Intergovernmental Interventions Government Interventions Government interventions implemented in recent years to address malnutrition among Haitian UNICEF. Haiti: Humanitarian Situation Report, April 2017. Publication. April 2017. https://www.unicef.org/appeals/files/UNICEF_Haiti_Humanit arian_Situation_Report_April_2017.pdf. 7 Scrimshaw, N. (1998). “Malnutrition, brain development, learning, and behavior.” Nutrition Research 18(2): 351-379. 8 African Union Commission. (2016). “The Cost of Hunger in Africa: the Social and Economic Impact of Child Undernutrition on Ghana’s Long-Term Development (COHA).” Publication. 6

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children have had questionable success. Most notably in 2012, President Michel Martelly launched Aba Grangou (Stop Hunger) with the aim of cutting malnutrition in half. The multifaceted program aspired to provide services, including cash-transfers for mothers to keep children in school, school lunch programs, and a food voucher system.9 Simultaneously, the central Haitian government increased spending on food security and poverty reduction from 40% of public expenditure to 59%.10 Some experts question whether money was spent on its intended purpose, given the high levels of government corruption. Moreover, according to the Center for Economic Policy Research, the absence of civil protests in response to the government program, suggests that most of the funding was used appropriately.11 Considering the high level of civil engagement in Haiti, this is at least a compelling benchmark though not a definitive one. There are no records available of the project’s efficacy and it is unclear if the project will continue under the new administration. When Martelly’s administration ended in February 2016, Haiti had an interim government led by Jocelerme Privert until President Jovenel Moïse was popularly elected in December 2016. Moïse ran on a campaign of agricultural development earning the nickname “banana man” CEPR. "Food Aid Reform Becomes More Urgent as Food Insecurity and Malnutrition Increase." Center for Economic Policy Research. June 11, 2013. Accessed December 06, 2017. http://cepr.net/blogs/haiti-relief-and-reconstruction-watch/foo d-aid-reform-becomes-more-urgent-as-food-insecurity-and-m alnutrition-increase. 10 WFP, FAO, & IFAD. The State of Food Insecurity in the World: Strengthening the enabling environment for food security and nutrition. Publication. World Food Programme (WFP), Food and Agriculture Organization of the United Nations (FAO) & International Fund for Agricultural Development (IFAD), 2014. http://www.fao.org/3/a-i4030e.pdf. 11 CEPR. "Food Aid Reform Becomes More Urgent as Food Insecurity and Malnutrition Increase." Center for Economic Policy Research. June 11, 2013. Accessed December 06, 2017. http://cepr.net/blogs/haiti-relief-and-reconstruction-watch/foo d-aid-reform-becomes-more-urgent-as-food-insecurity-and-m alnutrition-increase. 9

The Heinz Journal for his plantain farms around the country. Though he has upheld food security and agricultural development as national policy priorities, Moïse has done little thus far to fund long-term agricultural development and food security reform. After Hurricane Matthew in October 2017, the Haitian government allocated only 6.9% of the national budget to agriculture: a decision protested by rural farmers’ organizations in Haiti.12 In his campaign, the president spoke about his motivation to improve food security in Haiti. In the past year and a half in office, Moise has been garnering funding and partnerships with private companies in France to purchase tractors and irrigation technology for rice farmers in Haiti’s key rice-producing areas.13 Thus far, his administration has spent about $63.5 million USD on dredging irrigation canals, protecting flooded areas, and fixing rural roads for farmers to transport their produce to the market.14 While results of this program are not yet available, some local farmers critique the administration for its minimal engagement with local farmers, absence of of funding transparency, and insufficient long-term planning.15 Despite these critiques, Moise has come through on his promise to invest in food security for the country. Non-Governmental Organization Interventions

Johnston, Jake. "Haiti, Irma, Climate Change, and Priorities." CEPR. http://cepr.net/blogs/haiti-relief-and-reconstruction-watch/hait i-irma-climate-change-and-priorities. 13 Haiti Libre. (2018, March 27). “Haiti-Agriculture: Moise veut augmenter la production de riz dans la Plaine de Maribao.” Haiti Libre. Accessed at http://www.haitilibre.com/article-23933-haiti-agriculture-moi se-veut-augmenter-la-production-de-riz-dans-la-plaine-de-mar ibao.html 14 Jean-Louis, S. (2018, February). “How President Jovenel Moise’s ‘Change Caravan’ could Spark a Sustainable Solution to Chronic Malnutrition and Poor Health in Haiti.” Haiti Progres: Le Journal qui offre une alternative. Accessed at http://haiti-progres.com/news/2018/02/14/569/ 15 Lespinasse, C. (2017, May 24). “Presidential ‘Caravan for Change’:Haitians between enthusiasm and skepticism.” Coordination on Europe and Haiti. Accessed at http://coeh.eu/presidential-caravan-for-change-haitians-betwe en-enthusiasm-and-skepticism/ 12

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Non-governmental organizations (NGOs) in Haiti, ranging from the international NGO Partners in Health to the bilateral Kore Timoun, have used three main approaches to address malnutrition. First, NGOs with medical expertise and hospital facilities, such as Partners in Health (Haiti), focus on inpatient emergency treatment and outpatient home visits, which often address the after-effects of malnutrition and severe low-birth weights.16 Second, NGOs focused on children’s overall well-being, including residential care facilities such as Pwoje Espwa Sud in Southern Haiti, tend to utilize direct food aid imports as an inexpensive way to treat cases of malnutrition.17 Finally, some NGOs like Kore Timoun use community-based, education-centered approaches to increase food security on micro and mezzo levels by focusing on prevention with individual mothers and communities.18 All three types of NGO programs rarely collaborate with government entities. This is because (1) they are wary of the corruption they have seen within bureaucratic government offices and (2) they believe direct methods of intervention which subvert government are the fastest ways to meet community needs. Intergovernmental Organizations Interventions IGO’s such as the International Monetary Fund (IMF) and the World Food Programme (WFP) work more closely with the Haitian government because of their organizational structure and imperatives. In 2013, the IMF collaborated with the prime minister of Haiti to publish a report and proposal that aimed to reach predetermined indicators for social and economic growth, including land management and food security conditions (see Appendix A for selected Partners in Health. "Haiti." Partners In Health. 2016. Accessed September 30, 2016. http://www.pih.org/country/haiti. 17 Jenkin, Matthew. "Fed on food aid: does emergency nutrition cripple local economies?" The Guardian, August 13, 2014. Accessed September 26, 2016. https://www.theguardian.com/global-development-profession als-network/2014/aug/13/emergency-nutrition-local-economy -ngo-business. 18 "Kore Timoun." Children's Nutrition Program of Haiti. 2016. Accessed September 15, 2016. http://www.cnphaiti.org/. 16

Collaborations to Reduce Malnutrition in Haitian Children indicators). This is the first time that the Haitian government has invested in a short-term human development plan with a long-term vision. In this case, it was to improve on indicators to make Haiti an “emerging economy” by 2030.19 The World Food Programme, among other intergovernmental organizations, has also taken the lead on projects to address undernutrition in schools. They currently operate a school meals program which is the “largest food safety net” in the country.20 Similar programs have seen modest success because they can systematically access more of the population through partnerships with the Haitian government. Comparative Advantage Governmental organizations, NGOs, and IGOs each have comparative advantages due to their function, design, and areas of expertise. By design, IGOs have achieved more success because of their partnership with the Haitian government and organizational capacity. NGOs have had positive results in the smaller communities in which they work. The suggested policy recommendation draws on the lessons learned from successful programs across these sectors. Programs of Note The following three programs are notable for their relative success in addressing issues of malnutrition in Haiti using innovative and locally-driven solutions. Kore Lavi (Supporting Life) is a collaboration between CARE, the World Food Programme, the United States Agency for International Development (USAID), and the Ministry of Social Affairs and Labor (MAST) in Haiti. It focuses on increasing access to locally grown foods for vulnerable populations identified through International Monetary Fund, Ministry of Planning and External Cooperation (Haiti), and Ministry of Economy and Finance (Haiti). Haiti: Poverty Reduction Strategy Paper. Working paper no. 14/154. 2013. June 2014. Accessed October 1, 2016. 20 WFP. "The Republic of Haiti: Current Issues and what WFP is Doing." 2016. http://www.wfp.org/countries/haiti. 19

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screenings for food insecurity and malnutrition.21 As part of the program, the MAST has created a vulnerability targeting database that leverages NGO relationships to collect household survey data using the Haiti Deprivation and Vulnerability Index designed specifically for the program.22 Kore Lavi uses this database to distribute vouchers to households with limited financial resources identified through survey results . Kore Lavi collaborates with the Ministry of Women on the gendered implications of their program, employs local Haitians, and aims to strengthen the government’s ability to provide social safety nets that promote local economic growth. Although the program has been challenged by constant changes in government leadership, MAST has remained committed to the initiative.23 Kore Timoun (Supporting Children), a small NGO working in the central region of Haiti,. is a strengths-based program, which values local solutions and empowers women to improve nutritional outcomes for children. Kore Timoun successfully targets malnutrition by using the “positive deviance” model. This model employs mothers who are raising healthy children, despite limited financial resources, (“positive deviants”) to collaborate with other mothers in their community struggling with their own or their children’s nutrition. These “positive deviant” mothers provide strategies for other women in their community to achieve the same health outcomes as their own children. Partners in Health, a well-established NGO focused on healthcare in Haiti, has recently started Russell, Mara. Kore Lavi: A New Way to Do Food Aid. Issue brief. 2015. Accessed September 25, 2016. http://www.care.org/sites/default/files/documents/Kore-LaviBrief.pdf. 22 Janoch, E. (2017). “Reaching the Most Vulnerable: Working in Partnership with Haiti’s Government.” USAID Learning Lab. 2016. Accessed October 1, 2016. 23 Janoch, Emily. (2016) "Reaching the Most Vulnerable: Working in Partnership with Haiti's Government." USAID Learning Lab. Accessed October 1, 2016. https://usaidlearninglab.org/sites/default/files/resource/files/cl a_case_competition_casestory_75_care_haiti.pdf. 21

The Heinz Journal a noteworthy initiative to provide nutritional supplements for malnourished children while simultaneously contributing to the local agricultural economy. Working alongside Abbott and the Abbott Fund, Partners in Health built a production facility for a therapeutic food, nourimanba, that can be easily produced in Haiti. Nourimanba is made from locally-grown peanuts and quickly aids malnourished children in weight gain. It benefits the local economy because it not only provides manufacturing jobs in central Haiti and income for peanut farmers, but also helps malnourished children in gaining weight quickly; thereby subverting developmental delays of malnutrition in the long-term.24

achieves results by measuring poverty nationally, empowering government, and increasing food security.

III. Integrated Policy Approach Governmental, NGO, and IGO approaches have each offered valuable lessons for targeting malnutrition in Haiti. Each of these groups, however, usually operate in silos and do not take full advantage of the potential of collaboration with the notable exception of Kore Lavi, which is upheld by USAID and others as an exceptional model of collaboration in Haiti.25 Government interventions on their own have lacked the bottom-up transparency and local-level application that NGOs and IGOs often provide. NGOs and IGOs, however, do not have the necessary reach for broad impact that the government does. Furthermore, food security, women’s empowerment, and health education are all related to malnutrition and have been connected in some of the aforementioned program examples. NGOs like the Children’s Nutrition Program of Haiti effectively improve areas of women’s empowerment and health education on a local level with Kore Timoun. The Kore Lavi program

This cross-sectoral approach would engage government actors, NGOs, and IGOs. It would directly improve results in Sustainable Development Goals related to nutrition, sanitation, poverty, and women’s empowerment (i.e. SDG 1, SDG 2, SDG 3, SDG 5 and SDG 6). Increased levels of nutrition would improve children’s educational outcomes in the poorest communities in Haiti. Utilizing the “positive deviance” model of the Kore Timoun program would empower women and girls in their communities as well. This has proven to produce ripple effects for the entire community.26 Within just ten days of inclusion in this model, previously malnourished children throughout communities gain weight and energy and improve in overall health.27

Partners in Health. "Partnership in Haiti." Partnership in Haiti. 2016. Accessed October 02, 2016. http://partnershipinhaiti.org/. 25 Janoch, Emily. "Reaching the Most Vulnerable: Working in Partnership with Haiti's Government." USAID Learning Lab. 2016. Accessed October 1, 2016. https://usaidlearninglab.org/sites/default/files/resource/files/cl a_case_competition_casestory_75_care_haiti.pdf. 24

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The recommended approach would utilize data from the Ministry of Social Affairs and Labor (MAST) database to target areas of the country where community-driven nutrition initiatives are needed. Data collected from a UNICEF survey in 2012, shows that certain regions of the country are more food insecure than others including the north-east and south-east regions (see map in Appendix B). Utilizing such a database to target the poorest regions would ensure the most vulnerable groups receive support.

IV. Policy Recommendations: Collaborative Interventions to Address Malnutrition In order to target malnutrition for the poorest children in Haiti, it is recommended that an integrated approach be adopted on behalf of government, NGOs, and IGOs. This World Bank. World Development Report 2012: Gender Equality and Development . Publication. 2012. http://siteresources.worldbank.org/INTWDR2012/Resources/ 77781051299699968583/7786210-1315936222006/Complete-Report. pdf. 27 "Kore Timoun." Children's Nutrition Program of Haiti. 2016. Accessed September 15, 2016. http://www.cnphaiti.org/. 26

Collaborations to Reduce Malnutrition in Haitian Children recommendation proposes a four-tiered approach to integrate programs and improve outcomes for children both through malnutrition prevention and alleviation. It would involve an initial investment of capital and program monitoring, with re-evaluation after 3 and 5 years (typical of large-scale initiatives of this nature) from international funding organizations like UNICEF, the World Food Organization, and USAID. This approach would consider economic and social factors, build gender equality, and improve health and education outcomes for children. Ultimately, this program will result in a sustainable model for childhood nutrition in the poorest communities in Haiti without continued financial support from UNICEF and others by following the steps outlined below. 1. Invest in the MAST’s existing vulnerability targeting database using capital budgeted for tracking poverty in Haiti.28 Due to frequent high-level government turnover and corruption, the MAST department is moving forward with this initiative through force of will alone. The government is not currently in a position to invest in the staff needed to create this database effectively. An initial investment in this program would provide the foundation needed to create make the vulnerability targeting database accessible for use by NGOs, IGOs, and the Haitian government alike to address issues related to poverty. This funding would also support the Kore Lavi program. 2. Utilize the MAST’s existing vulnerability targeting database to identify regions where households are most food insecure. UNICEF could use the MAST database to identify and target interventions to regions where households are most food insecure. This information would provide data to map the areas UNICEF. Haiti: Humanitarian Situation Report, April 2017. Publication. April 2017. https://www.unicef.org/appeals/files/UNICEF_Haiti_Humanit arian_Situation_Report_April_2017.pdf.

where malnutrition interventions are most needed. The mapping technique and data could be used for other initiatives by funding agencies like UNICEF, WFO, and USAID. 3. Collaborate with Kore Timoun to operationalize the “positive deviance” approach and train women in areas with high food insecurity to utilize this model. Kore Timoun and other NGOs internationally implement the “positive deviance” approach by drawing from the knowledge of women in local communities. These small NGOs have to increase capacity to successfully target multiple regions of Haiti. With an investment of capital, local women who have participated in the Kore Timoun program could be contracted to train women in other communities to implement this method. These contractors could also train NGOs in targeted areas which have already established a good working relationship with communities. 4. Connect communities to local Haitian agricultural production initiatives for severely malnourished children. The “positive deviance” model is useful as a preventative intervention for malnutrition and undernutrition. In cases in which a child is already severely malnourished, however, a more immediate intervention is required. This approach usually includes a hospital visit as well as the procurement of nourimanba—the peanut-based therapeutic food for undernourished children. Many NGOs in Haiti already use therapeutic foods successfully to treat malnutrition. Kore Timoun, for example uses PlumpyNut: a nutrient-rich food manufactured by a French company and likely procured as an aid donation.29 Initiatives to grow and manufacture therapeutic foods in-country should be prioritized.

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"Kore Timoun." Children's Nutrition Program of Haiti. 2016. Accessed September 15, 2016. http://www.cnphaiti.org/. 29

The Heinz Journal An awareness campaign about the benefits of nourimanba should make use of Partners in Health’s creole-language resources. This will ensure the most comprehensive understanding of the product for many of the poorest people in the country who speak Haitian Creole (as opposed to French, the official language of the company, and the labeling language of PlumpNut). In turn, the procurement of nourimanba could also redirect NGOs to support the Haitian agricultural sector. By purchasing therapeutic foods made in-country they will contribute to the country’s economy.30 V. In Summary To combat Haiti’s malnutrition problem, it is recommended that government, NGOs, and IGOs utilize a multifaceted approach. This policy would necessitate an investment from UNICEF, USAID, or WFO funds already set aside for poverty alleviation. It would require the intentional collaboration of these groups by drawing on their strengths and synergies of existing programs. Most importantly this recommendation holds the potential to identify, aid, and empower the most vulnerable communities in Haiti to address the problem of childhood malnutrition. Community members will have the opportunity to act as agents of their own change in the realms of public health and economic development if government, NGOs, and IGOs can work collaboratively to create solutions.

Pwoje Kore Fanmi: Nitrisyon. Publication. 2013. 2013. Accessed September 25, 2016. http://parthealth.3cdn.net/9cf3ace0317e380bc4_mlbratbyw.pd f. 30

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Collaborations to Reduce Malnutrition in Haitian Children Appendix A: International Monetary Fund, Ministry of Planning and External Cooperation (Haiti), and Ministry of Economy and Finance (Haiti). Haiti: Poverty Reduction Strategy Paper. Working paper no. 14/154.2013.June2014.AccessedOctober1,2016.

https://sustainabledevelopment.un.org/content/documents/1451haiti.pdf.

Matrix of Global Development Indicators 2014-2016 Framework for the Accelerated, Balanced Growth of the Economy and Poverty Reduction Indicators

Expected Impact

Results Indicators

Targets 2015 (2014)

2016

Job Creation

Increase in collective wealth, increased participation in economic life, and a reduction in pressures on the environment

a. Increase in number of jobs per person b. Number of jobs created (all sectors together) c. Increase in average annual income d. Improved energy coverage e. Number of persons/year in highly labor-intensive projects

a. 3.5% b. 50,000 c. 3.5% d. 5% e. 200,000

a. 7% b. 100,000 c. 7% d. 10% e. 250,000

a. 7% b. 100,000 c. 7% d. 10% e. 300,000

Gender Equality

Promotion of the participation of women in development

a. Increased number of women in public decision-making positions b. Increased value of public investments implemented by women c. Increased number of women in traditionally male trades d. Increased number of men in traditionally female trades e. Increased number of women employed in the civil sector

a. 5% b. 5% c. 5% d. 5% e. 5%

a. 10% b. 10% c. 10% d. 10% e. 10%

Fighting social exclusion

An increase in school attendance and citizen involvement, as well as increased participation in economic activity on the part of women, youth, and people with disabilities

a. Increased number of children enrolled in school b. Increased number of participation in civic activities c. Increased number of youth in training or internship programs d. Increased number of persons with disabilities in the labor market e. Reduction of extreme poverty

a. 5% b. 5% c. 5% d. 5% e. 5%

a. 10% b. 10% c. 10% d. 10% e. 10%

Improving Living Conditions

An improvement in general housing conditions and increased use of modern domestic facilities

a. Number of serviced plots b. Reduction in size of slums or shantytowns c. Number of families rehoused after losing their homes d. Reduction of crime (in urban and rural settings) e. Increase in developed public spaces

a. 15,000 b. 1% c. 30,000 d. 3.5% e. 3.5%

a. 20,000 b. 1% c. 35,000 d. 7% e. 7%

a. 25,000 b. 2% c. 35,000 d. 7% e. 7%

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The Heinz Journal Improving food An increase in security conditions agricultural and livestock production and a reduction in food dependence

a. 5% b. 5% c. 1% d. 1%

a. 10% b. 10% c. 1% d. 1%

a. 10% b. 10% c. 2% d. 1%

Improving risk and Sound, effective a. Increased plant and forest coverage a. 5% disaster management of the b. Development of watersheds b. 5% management natural environment, c. Kilometers of regulated waterways c. 5% and increased preservation of its riches

a. 10% b. 10% c. 10%

Improving land management

a. 1% b. 1% c. 1%

a. 1% b. 2% c. 2%

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Development and recognition of public and private property

a. Increased volume of agricultural and animal production b. Decreased volume of imported agricultural food products c. Increased volume of fish products consumed d. Reduction of relative value of the basic food basket

a. Increased property tax revenue b. Increased number of landowners c. Land register records

a. 1% b. 1% c. 1%

Collaborations to Reduce Malnutrition in Haitian Children Appendix B: Technique Sécurité Alimentaire et Nutrition (GTSAN/OCHA). Haiti: Food Security and Nutrition Snapshot. February 2013. Accessed October 1, 2017.

https://reliefweb.int/report/haiti/haiti-food-security-and-nutrition-snapshot-july-2013-enfr

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The Heinz Journal

Cash Bail and Poverty Natalie Crofts Carnegie Mellon University – H. John Heinz III College Introduction for decades because it disproportionately hurts those who are living in poverty, many of whom Every day in the United States, hundreds of belong to minority groups. The second section of thousands of people are detained until they can this paper explores those resulting costs, appear in court. 1 While there are legitimate safety presenting details about how pretrial detention reasons to detain defendants until their trials are economically affects individuals and families who resolved if they pose a threat to their community, a are living in poverty. It also looks at how pretrial large portion of pretrial detainees are people incarceration has contributed to the rise in suspected of committing minor crimes who simply government spending for the United States as a cannot afford to pay a bail to secure their release. 2 whole. This paper explores the substantial impact pretrial The third section of this paper focuses on three detention can have on the lives of defendants who U.S. jurisdictions that have taken different could be released with minimal risk to the approaches to the use of a cash bail system with community, but are not due to bail requirements. divergent results. The District of Columbia, which Addressing this problem now is critical, as essentially prohibited the use of money bail years evidenced by the dramatic increase in overall ago, provides a model for an effective judicial incarceration rates in recent decades, which nearly process without bail requirements for the majority tripled between 1980 and 2015, and numerous of its defendants. Even though 91% of defendants examples of people throughout the country who are released pretrial without paying a money bail, are forced to make difficult decisions because they the vast majority still show up for court and are 3 are needlessly detained. not rearrested while waiting for trial. 4 The story is To fully understand the current situation, this vastly different in New Orleans, Louisiana, or paper first delves into the origins of bail and the Harris County, Texas, where pretrial incarceration history of how the cash bail system has evolved in rates remain very high and complaints about the United States. While the bail system was first discrimination abound. By comparing the developed as a means of providing liberation from approaches of the different jurisdictions, common incarceration to people who would not have been mistakes and best practices become apparent. The granted release otherwise, it has increasingly pros and cons of different approaches are further become employed as a tool to keep defendants examined in the fourth section of the paper, which behind bars. As a result, the modern cash bail will analyze how Germany and Finland operate system has sparked reports of abuse and injustice without using a bail system. 1 Nick Pinto, “The Bail Trap,” The New York Times, August

13, 2015. https://www.nytimes.com/2015/08/16/magazine/the-bailtrap.html?_r=1 (accessed January 14, 2014). 2 White House Council of Economic Advisors, “Economic Perspectives on Incarceration and the Criminal Justice System,” Executive Office of the President of the United States, April 2016. https://obamawhitehouse.archives.gov/sites/whitehouse.gov/fi les/documents/CEA%2BCriminal%2BJustice%2BReport.pdf (accessed January 30, 2017). 3

Bureau of Justice Statistics, “Key Statistic: Incarceration Rate, 1980-2015,” March 16, 2017. https://www.bjs.gov/index.cfm?ty=kfdetail&iid=493 (accessed March 22, 2018).

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The final section of this paper provides ideas on how the U.S. can relieve the burden people living in poverty face when they interact with the criminal justice system. The recommendations are threefold: eliminate pretrial detention for offenses that carry a maximum sentence of less than one year of imprisonment, establish laws that prohibit

4 Hon. Eric T. Washington, “State Courts and the Promise of

Cash Bail and Poverty the use of cash bail, and maintain a robust pretrial services agency.

History of the Monetary Bail System Origins of Bail Arrangements similar to the modern American bail system have been in use since ancient times, with historians finding evidence of collateral being provided by citizens of the Roman Empire to secure freedom from prison while awaiting trial. 5 Bail also played an important role in England’s early history. English laws are credited with having the greatest influence on how the monetary bail system was shaped at the founding of the United States.6 During the Middle Ages, Anglo-Saxon laws established a bail system to reduce the use of expensive prisons and prevent criminals from fleeing justice. 7 Under the Anglo-Saxon legal system, which only dealt with crimes as private affairs, defendants were released until trial if they provided a pledge that was exactly equal to the amount they would have to pay if found guilty. 8 If the defendant did not return to court, they forfeited their pledge to their accuser. 9 These practices in England changed when criminal activities began to be treated as state affairs, instead of private, at the onset of the Norman Conquest in 1066. 10 Corporal punishments soon 5 Richard A. Bauman, “Human Rights in Ancient Rome,”

(London: Taylor & France e-library, 2003), 44. https://books.google.com/books?id=pswrBgAAQBAJ&pg=P A44&lpg=PA44&dq=history+of+bail+ancient+rome&source =bl&ots=q_pub4U63f&sig=_5ZFOhEnjDkWOVJHZeenJIaH F1w&hl=en&sa=X&ved=0ahUKEwj055jA6MLRAhXHOBo KHaBPDEIQ6AEITDAJ#v=onepage&q=history%20of%20b ail%20ancient%20rome&f=false (accessed January 14, 2017) 6 Timothy R. Schnacke, Michael R. Jones and Claire M. B. Booker, “The History of Bail and Pretrial Release,” Pretrial Justice Institute, September 24, 2010. http://www.pretrial.org/download/pji-reports/PJIHistory%20of%20Bail%20Revised.pdf (accessed January 14, 2017). 7 Ibid.

took the place of monetary penalties in a greater number of cases, causing more people to flee before their trials. It also took much longer for cases to be heard because corruption became rampant among officials. 11 The Magna Carta, signed by King John in 1215, directly addressed these problems by stating that “for a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood.” 12 Subsequently, the Statute of Westminster the First of 1275 defined which offenses qualified for bail and which did not.13 The rules surrounding bail that were enumerated in the Statute of Westminster remained largely unaltered for the following 500 years, but were updated when Parliament passed the Habeas Corpus Act of 1679 to penalize judges who did not offer bail when it was required by law. 14 When judges pushed back by purposefully setting bail at levels that were unaffordable, Parliament again addressed the issue by outlawing the practice of setting “excessive bail” in the English Bill of Rights of 1689. 15 Evolution of the Bail System in the U.S. The Eighth Amendment of the United States Constitution, adopted as part of the Bill of Rights in 1789, states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 16 The language used in the amendment comes from the Virginia Declaration of Rights, which was based on the English Parliament’s Bill of Rights of 1689.17 A threshold for excessive bail was not established by the Eighth Amendment, but in 1951 11 Ibid. 12 “English Translation of Magna Carta,” British Library.

https://www.bl.uk/magna-carta/articles/magna-carta-englishtranslation (accessed Jan. 21, 2017). 13 Congressional Research Service, “CRS Annotated Constitution,” Cornell University Law School, 1992, accessed January 14, 2017, https://www.law.cornell.edu/anncon/html/amdt8_user.html#a mdt8_hd4 14 Ibid.

8 Ibid.

15 History of Bail and Pretrial Release.

9 Ibid.

16 U.S. Constitution, amend. 8

10 Ibid.

17 CRS Annotated Constitution.

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The Heinz Journal the Supreme Court defined “excessive bail” as being any figure set higher than the amount of money required to ensure a defendant will appear in court.18 That same 1951 decision dictated that the proper procedure to challenge bail as being unlawful is by motioning for a reduction of bail. 19 If that motion is denied, challengers were directed to appeal to the Court of Appeals. 20

appropriate.25 The initial project lasted three years and of the 3,505 people who were released without bail, all but 1.6% appeared for trials.26 Soon, New York’s five bureaus adopted principles from the Manhattan Bail Project and the U.S. Department of Justice held a conference on bail, sparking the discussion that shaped the Bail Reform Act of 1966.27

The first major national attempt at reform did not occur until after multiple reports of abuse and injustice surfaced in the 1950s and 60s. Many of the reports indicated that bail was being used as a tool to punish defendants and disproportionately hurt the poor.21 The creation of the Bail Reform Act of 1966 was spurred by the Vera Foundation’s Manhattan Bail Project, which showed early signs of success in the early 1960s. 22 Vera was founded in 1961 with the stated goal of investigating bail reform.23 Troubled by the large number of people imprisoned in Manhattan while waiting for trial, its researchers ran an experiment to determine whether certain defendants would return to court even if they did not pay a bail.24 Researchers from the foundation evaluated the flight risk factors of defendants and recommended their release to judges without bail when they felt it was

In his remarks before signing the Bail Reform Act of 1966 into law, President Lyndon B. Johnson cited the Manhattan Bail Project as evidence that when judges have adequate information to evaluate defendants, bail was unnecessary. 28 Johnson also described why the legislation was needed, stating that the bail system “inflicted arbitrary cruelty” by detaining people who could not afford to pay bail for “weeks, months, and perhaps even years” before their trials. 29 In the stories Johnson shared, the costs of remaining in jail while awaiting trial sound remarkably similar to the challenges people face today: the loss of jobs, contact with family members, and possessions.30 The 1966 reform act attempted to address these problems by providing a set of conditions for judges to consider and specifying that defendants should be released without money bail “whenever it is justified by the facts.” 31 Specifically, the legislation included these five main provisions:

18 STACK et al. v. BOYLE, U.S. Marshal, 342 U.S. 1 (1951),

https://www.law.cornell.edu/supremecourt/text/342/1 (accessed January 14, 2017). 19 Ibid.

“(1) A presumption in favor of releasing non-capital defendants on their own recognizance;

20 Ibid. 21 History of Bail and Pretrial Release.

(2) conditional pretrial release with conditions imposed to reduce the risk of failure to appear;

22 “Glossary of Terms,” Pretrial Justice Institute, 2014.

http://www.pretrial.org/glossary-terms/ (accessed January 14, 2017). Lyndon B. Johnson: "Remarks at the Signing of the Bail Reform Act of 1966.," June 22, 1966. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=27666.

(3) restrictions on money bail bonds, which the court could impose only if nonfinancial release options were not

Vera Institute of Justice, “Our History,” Undated. https://www.vera.org/about (accessed March 31, 2018). 24 Scott Kohler, “Vera Institute of Justice: Manhattan Bail Project,” in Casebook for The Foundation: A Great American Secret, ed. Joel Fleishman, J. Scott Kohler, Steven Schindler (New York: PublicAffairs, 2007), 81. https://books.google.com/books?id=5RmHA1SAoAgC&pg= PA81&lpg=PA81&dq=scott+kohler+vera+case+29&source= bl&ots=j58sV2MzsK&sig=ljN9AwhZs2N8MttYqt8unEaQp5 U&hl=en&sa=X&ved=0ahUKEwiH27XIztPRAhUCKiYKH WgSCRsQ6AEIIDAB#v=onepage&q=scott%20kohler%20ve ra%20case%2029&f=false (accessed Jan. 21, 2017)

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25 Ibid. 26 Ibid. 27 Ibid. 28 Remarks at the Signing of the Bail Reform Act of 1966. 29 Ibid. 30 Ibid. 31 Ibid.

Cash Bail and Poverty enough to appearance;

assure

defendant’s

(4) a deposit money bail bond option, allowing defendants to post a 10% deposit of the money bail bond amount with the court in lieu of the full monetary amount of a surety bond;

Office released a report stating that the pretrial custody rate increased in three of the four districts evaluated.38 That trend continued during the following decades, with the unconvincted inmate rate rising by 200% in local jails between 1983 and 2014.39 This was much faster than the rate for inmates convicted of a crime, which grew by 90% during the same time period. 40

and (5) review of bail bonds for defendants detained for 24 hours or more.” 32

Economic impact of the cash bail system

Once the Bail Reform Act of 1966 passed, the ideas shared in the legislation spread beyond the federal bail system to local jurisdictions and states developed laws containing similar language. 33 The act is credited with alleviating problems related to discrimination and unnecessary delays. However, some researchers argue that it also led to judges setting bail more frequently because they had a set list of factors to consider.34 The next major change to the bail system occurred when Congress passed the Bail Reform Act of 1984. The new act amended the Bail Reform Act of 1966, as an additional amendment where judges needed to consider whether releasing a defendant pre-trial would “endanger the safety of any other person or the community.” 35 Judges were directed to consider drug or alcohol abuse and criminal history when deciding whether a defendant qualified for release. 36 In cases where a threat to others was perceived, the Bail Reform Act of 1984 empowered judges to detain defendants pretrial without granting bail. 37 Five years after the act was signed into law, the Government Accountability 32 Glossary of Terms. 33 Ibid. 34

Christopher Moraff, “U.S. Cities Are Looking for Alternatives to Cash Bail,” NextCity, March 24, 2016. https://nextcity.org/daily/entry/cities-alternatives-cash-bail (accessed January 10, 2017).

“Release or detention of a defendant pending trial,” 18 U.S. Code § 3142 (1984), https://www.law.cornell.edu/uscode/text/18/3142 (accessed January 14, 2017). 36 Ibid. 37 Ibid.

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As the number of defendants detained before trial increased, the U.S. saw a rise in criminal justice expenditure. By 2012, government spending on criminal justice totaled $274 billion, which represented a 74% increase from 1993. 41 One factor driving the increase in spending was the steady growth of the jail inmate population, which the Bureau of Justice Statistics estimated increased by about 1% annually between 2000 and 2014. 42 When comparing the current inmate population to that of 1990, the difference is more dramatic. Between 1990 and 2008, the total sentenced population grew by 50% nationwide, from 200,000 to 300,000 inmates. 43 The surge in the pretrial population is especially striking, with an increase of 150% during that same period, from 200,000 to 500,000 inmates. 44 This translated into approximately $9 billion being spent on pretrial jail beds in recent years, according to an estimate

38 United States General Accounting Office, “Criminal

Justice: Impact of Bail Reform in Selected District Courts,” U.S. Government Accountability Office, November 1989. http://www.gao.gov/assets/150/148446.pdf (accessed January 21, 2017). 39 Economic Perspectives on Incarceration. 40 Ibid. 41 Ibid. 42 Todd D. Minton and Zhen Zeng, “Jail Inmates at Midyear

2014,” U.S. Department of Justice Bureau of Justice Statistics, June 2015. https://www.bjs.gov/content/pub/pdf/jim14.pdf (accessed January 29, 2017). 43 John Clark, “The impact of money bail on jail bed usage,” Pretrial Justice Institute, July 2010. https://www.pretrial.org/download/pjireports/AJA%20Money%20Bail%20Impact%202010.pdf (accessed January 30, 2017). 44 Ibid.

The Heinz Journal from 2011.45 That figure represents 11% of total spending on corrections. 46 Many of these pretrial defendants are eligible for release, but are only detained because they cannot afford to pay the cash bail set for them. 47 Often, it is only a relatively small amount of money that prevents a defendant from securing their freedom. While the federal government does not track the specific number of inmates who cannot make bail due to financial hardship, various jurisdictions across the U.S. have provided a snapshot of current conditions. 48 In New York City alone, approximately 45,000 people are incarcerated while awaiting trial each year. 49 Of all defendants in the city, 80% were unable to pay a bail of $500 or less, according to the New York City Criminal Justice Agency.50 Similarly, when the Chicago Tribune wrote a story on the cash bail system in November 2016, it found there were approximately 300 inmates who could not pay a $100 cash bail being held at the Cook County Jail.51 On one day in New Jersey in 2012, there were 1,547 inmates imprisoned before trial because they could not pay $2,500 or less. 52 One reason why some of these defendants cannot afford to pay bail, even at the relatively low levels of $100 or $500, is because the sum represents a 45 Economic Perspectives on Incarceration. 46 Ibid. 47 Ibid. 48 Pinto. 49

Ibid.

50 Economic Perspectives on Incarceration.

Mary T. Phillips, “A Decade of Bail Research in New York City,” New York City Criminal Justice Criminal Justice Agency, August 2012. https://www.prisonpolicy.org/scans/DecadeBailResearch12.p df (accessed March 31, 2018). 51

Steve Schmadeke, “Cash bail under fire as discriminatory wile poor inmates languish in jail,” The Chicago Tribune, November 15, 2016. http://www.chicagotribune.com/news/local/breaking/ct-cookcounty-cash-bail-met-20161114-story.html (accessed January 31, 2017). 52 Marie VanNostrand, “New Jersey Jail Population Analysis,” Luminosity in Partnership with the Drug Policy Alliance, March 2013. https://www.drugpolicy.org/sites/default/files/New_Jersey_Jai l_Population_Analysis_March_2013.pdf (accessed February 21, 2017).

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significant portion of their annual income. The Prison Policy Initiative examined data from the Bureau of Justice Statistics and discovered that the median bail amount is equal to approximately eight months of income for the typical detained defendant, who had a median annual reported income of $15,109 before they were incarcerated.53 More than 60% of detainees who could not afford bail were members of the poorest third of the U.S. population, according to the same PPI report. 54Even for the average American, paying a cash bail could be difficult. Nearly half of adults would be unable to pay for an unexpected cost of over $400 without selling something or borrowing money, according to the Federal Reserve.55 Examples of Jurisdictions with and without Cash Bail Systems Washington, D.C.: A district without cash bail Although money bail is still used daily in the majority of U.S. jurisdictions, it is possible to run a successful system of criminal justice without it. The District of Columbia’s legal system is widely regarded as being the best example of how courts and law enforcement can operate without cash bail. Almost immediately after the Manhattan Bail Project started showing early signs of success with evaluating the flight risk factors of defendants to recommend release without bail, D.C. adopted its own version of the experiment by launching the D.C. Bail Project in 1963. 56 The objective of the project was to reduce the pretrial detainment of defendants who could not afford to pay bail. To 53 Bernadette Rabuy and Daniel Kopf, “Detaining the Poor:

How money bail perpetuates an endless cycle of poverty and jail time,” Prison Policy Initiative, May 10, 2016. https://www.prisonpolicy.org/reports/incomejails.html (accessed January 31, 2017). 54 Ibid. 55 Board of Governors of the Federal Reserve System,

“Report on the Economic Well-Being of U.S. Households in 2016,” May 2017. https://www.federalreserve.gov/publications/files/2016report-economic-well-being-us-households-201705.pdf (accessed March 31, 2018). 56 “PSA’s History,” Pretrial Services Agency for the District of Columbia. https://www.psa.gov/?q=about/history (accessed February 20, 2017).

Cash Bail and Poverty accomplish this goal, members of the project’s team investigated defendants before presenting recommendations for release to the courts. 57 The program was backed by the mayor and expanded steadily over the following decades. 58 Since its start, the D.C. Bail Project has evolved to become known as the Pretrial Services Agency (PSA) for the District of Columbia. It is now a federal agency with several hundred employees that operates within D.C.’s Court Services and Offender Supervision Agency.59 The PSA played a key role in eliminating the use of cash bail in D.C.. In 1990, researchers with the organization found that two-thirds of defendants who were eligible for release were still being required to pay a money bail to secure their release.60 This sparked controversy when it appeared that some affluent high-risk defendants were committing crimes after being released, while low-risk defendants were detained in jail only because they could not pay bail. 61 The director of the PSA at that time, John A. “Jay” Carver, addressed the problem by working with the U.S. Attorney’s Office and Public Defender’s Office.62 Together, they developed local legislation that expanded the scope of pretrial detention. This legislation also prohibited judges from imposing a financial condition as a means to keep defendants in jail before trial. 63 The latter essentially ended the practice of setting cash bail in D.C. because it specified that financial bail was 57 Bruce Beaudin, “The D.C. Pretrial Services Agency:

Lessons from Five Decades of Innovation and Growth,” Pretrial Justice Institute, 2009. https://www.pretrial.org/download/pjireports/Case%20Study-%20DC%20Pretrial%20Services%20%20PJI%202009.pdf (accessed February 20, 2017). 58 PSA’s History. 59 Ibid.

Beaudin. 60Ibid. 61 Hon. Eric T. Washington, “State Courts and the Promise of

Pretrial Justice in Criminal Cases,” New York University Law Review, November 2016. http://www.nyulawreview.org/sites/default/files/pdf/NYULaw Review-91-5-Washington.pdf (accessed February 21, 2017). 62 § 23–1321. Release prior to trial. Code of the District of Columbia. https://beta.code.dccouncil.us/dc/council/code/sections/231321.html (accessed February 21, 2017). 63 Beaudin.

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only allowed when it did not “result in the preventive detention of the person.” 64 In the first six months after the legislation was passed by the D.C. Council to become part of the Code of the District of Columbia in 1992, the percentage of defendants who were released on non-monetary conditions increased from 63% to 80%. 65 Today, the PSA still does not recommend financial bond when working with judges and 91% of defendants are released on non-monetary conditions.66 The remainder of defendants who are not released are held because they have been deemed high risk, not because they cannot afford to pay a bail. In place of money bail, courts in D.C. rely heavily on the PSA’s evaluations to determine whether a defendant can be safely released and what conditions should be set. 67 Except for extremely rare exceptions, defendants are either released on non-monetary conditions or held without bail. 68 The PSA’s recommendations are based on a prerelease investigation conducted by the agency that includes interviewing defendants, reviewing criminal history at the local and national levels, and gathering additional relevant information, including drug test results and previous probation

64 § 23–1321.

Ann E. Marimow, “When it comes to pretrial release, few other jurisdictions do it D.C.’s way,” The Washington Post, July 4, 2016. https://www.washingtonpost.com/local/publicsafety/when-it-comes-to-pretrial-release-few-otherjurisdictions-do-it-dcs-way/2016/07/04/8eb52134-e7d3-11e5b0fd-073d5930a7b7_story.html?utm_term=.4bb2162ee50d (accessed February 19, 2017). 65 Nancy Lewis, “Bail law’s results mixed,” The Washington Post, September 4, 1992. https://www.washingtonpost.com/archive/local/1992/09/04/ba il-laws-results-mixed/c01c4ab4-52e2-4634-90a333fcd3c6af09/?utm_term=.7955d6b358fe (accessed February 22, 2017). “Report of the Joint Committee on Criminal Justice,” New Jersey Courts, March 10, 2014, 41. https://www.judiciary.state.nj.us/pressrel/2014/FinalReport_3 _20_2014.pdf (accessed February 21, 2017). 66 PSA’s History. Washington. 67 Beaudin. 68

“PSA’s Role in the Criminal Justice System,” Pretrial Services Agency for the District of Columbia. https://www.psa.gov/?q=about/role (accessed February 22, 2017).

The Heinz Journal compliance.69 Based on the information gathered during the investigation, the PSA will evaluate the defendant’s flight risk and probability of rearrest to make a recommendation as to whether the defendant should be released or detained. 70 The agency always recommends what it considers to be the least restrictive conditions and supervision levels necessary to assure safe compliance from the defendant.71 If a defendant qualifies for conditional release, the PSA supervises the defendant to ensure they comply with the conditions of their release and appear for court. 72 When appropriate, the PSA also connects defendants with social services to help with substance dependence, mental health challenges, and other issues that could impact public safety and court appearance. 73 The measures put in place by the PSA appear to be highly effective for ensuring defendants appear at court and do not pose a risk to the community while waiting to resolve cases. Between October 2014 and June 2015, 90% of released defendants appeared at all of their scheduled court appearances and 91% remained arrest free while their cases were going through the court system, according to the PSA. 74 Notably, a full 98% of those released during that period were not rearrested for involvement with a violent crime. 75

New Orleans: The city with the highest incarceration rate

69 “A Case for the Future: Pretrial Services Agency for the

District of Columbia FY 2014-2018 Strategic Plan,” Pretrial Services Agency for the District of Columbia, February 2014. https://www.psa.gov/sites/default/files/PSA%2020142018%20Strategic%20PlanFINAL%20February%202014_0.pdf (accessed February 22, 2017). 70 Ibid. 71 Ibid. 72 Ibid. 73 Ibid. 74 “Performance Measures,” Pretrial Services Agency for the

District of Columbia, 2015. https://www.psa.gov/?q=data/performance_measures (accessed February 20, 2017). 75 Ibid.

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When Hurricane Katrina hit in 2005, New Orleans had the highest incarceration rate in the U.S. 76 At a rate that was five times the national average, approximately 6,300 people were incarcerated out of the New Orleans’ roughly 484,000 residents. 77 While incarceration and arrest rates for the city have since improved, there is still much that can be learned from the problems New Orleans faces, which have far from been resolved. 78 Of those who were incarcerated at the time of the hurricane, a large number and proportion of people were being held pretrial. Out of everyone arrested by the city’s police department between October 2003 and September 2004, only 44% were eventually convicted of some charge and 7% were sentenced to prison.79 The majority of arrests were made for minor offenses, with drug-related offenses accounting for 65% of all arrests and propertyrelated offenses accounting for another 20%.80 Only 15% of all arrests were for violent offenses. 81 Nationally, during the same 2003 to 2004 period, 31% of arrests were for drug-related offenses and 38% were for property-related offenses, with a much higher 31% for violent crimes. 82 However, despite the unusually high arrest rates in New Orleans, crime levels did not show improvement

76 The New York Times Editorial Board, “The New Orleans

Jails, 10 Years Later,” The New York Times, August 27, 2015. https://www.nytimes.com/2015/08/28/opinion/the-neworleans-jails-10-years-later.html?_r=0 (accessed February 24, 2017). 77 Allison Plyer, Nihal Shrinath and Vicki Mack, “The New Orleans Index at Ten: Measuring Greater New Orleans’ Progress toward Prosperity,” The Data Center, July 2015. https://s3.amazonaws.com/gnocdc/reports/TheDataCenter_Th eNewOrleansIndexatTen.pdf (accessed March 17, 2017). 78 Brentin Mock, “How New Orleans Stopped Making Jailing a Business,” CityLab, June 18, 2015. http://www.citylab.com/crime/2015/06/how-new-orleansstopped-making-jailing-a-business/396188/ (accessed March 8, 2017). 79 “Performance of the New Orleans Criminal Justice System 2003-2004,” Metropolitan Crime Commission, August 2005. http://metrocrime.org/wp-content/uploads/2013/10/Perf-ofthe-NO-Criminal-Justice-System-2003-2004.pdf (accessed March 3, 2017). 80 Ibid. 81 Ibid. 82 Ibid.

Cash Bail and Poverty and jail conditions became unsafe due to overcrowding.83 For those who were arrested, a lack of funds to pay for bail drove long pretrial detentions. 84 This is because at the same time the city was struggling with incarceration, Orleans Parish had nearly twice the national average poverty rate and ranked as having the 7th highest poverty rate out of the largest U.S. counties at 23.2%. 85 Since then, the percentage of people living in poverty has largely remained stagnant. 86 In 2015, the poverty rate in New Orleans appeared to be slightly higher at 27%, but it did not represent a statistically significant difference from the previous decade. 87 African Americans, who made up 66% of the city’s population in 2005 and 59% in 2013, disproportionately find themselves living in poverty.88 Out of everyone in New Orleans living under the poverty line in 2005, 84% were African American.89 The economic disparity between races translated into differences in length of pretrial detention, with African American defendants staying behind bars twice as long as white defendants who were charged with the same offense.90 This problem is exacerbated by the fact

83 Mock. 84 Allison Plyer, Nihal Shrinath and Vicki Mack. 85 Peter Fronczek, “Income, Earnings and Poverty from the

2004 American Community Survey,” U.S. Census Bureau, August 2005. https://www.census.gov/prod/2005pubs/acs01.pdf (accessed March 17, 2017). 86 Plyer, Shrinath and Mack.

that African American men and women are roughly twice as likely to be arrested than their fellow white citizens in New Orleans. 91 At the time Hurricane Katrina struck Orleans Parish, being released pretrial without paying a cash bail was unheard of, with essentially 0% of defendants being released on their own recognizance or an unsecured personal security bond.92 A number of financial factors incentivized city and law enforcement officials to rely on the cash bail system. The Sheriff’s Office was motivated to hold as many people as possible for extended periods in the Orleans Parish Prison because it received a per diem from the city for each inmate.93 Judges favored setting a cash bail because criminal courts collected fees from commercial bonds.94 There was no mechanism similar to Washington, D.C.’s Pretrial Services Agency to evaluate the risk factors each defendant posed and the city did not offer any guidelines to help judges determine when it was appropriate release someone on their own recognizance. 95 On top of this, commercial bondsmen were able to encourage the continued use of bail through influencing policymakers as their industry profited from the system. 96 As a result of the frequent implementation of cash bail, thousands of people have faced detainment due to financial difficulties. 97 While the exact statistics of how New Orleans residents living in poverty are impacted by the cash bail system are largely unavailable, the Vera Institute interviewed people impacted by the system and found stories of families going to extreme lengths to post bail

87 United States Census Bureau / American Fact Finder.

“Selected Economic Estimates for New Orleans city, Louisiana.” 2011-2015 American Community Survey 5-Year Estimates. U.S. Census Bureau’s American Community Survey Office, 2015. https://factfinder.census.gov/bkmk/table/1.0/en/ACS/15_5YR /DP03/0400000US22|1600000US2255000 (accessed March 17, 2017). Plyer, Shrinath and Mack. 88 Ben Casselman, “Katrina Washed Away New Orleans’s Black Middle Class,” FiveThirtyEight, August 24, 2015. https://fivethirtyeight.com/features/katrina-washed-awaynew-orleanss-black-middle-class/ (accessed March 18, 2017). 89 Katz. 90

Judge Calvin Johnson, Mathilde Laisne and Jon Wool, “The New Orleans Index at Ten: Criminal Justice, Changing Course on Incarceration,” The Data Center, June 2015. https://s3.amazonaws.com/gnocdc/reports/The+Data+Center_

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NOI10_Changing+Course+on+Incarceration.pdf (accessed March 3, 2017). 91

“New Orleans: Who’s in Jail and Why?” Vera Institute for Justice, January 2016. https://storage.googleapis.com/veraweb-assets/downloads/Publications/new-orleans-jailpopulation-quarterly-report/legacy_downloads/JailPopulation-First-Quarterly-Report-Jan-March_web.pdf (accessed March 3, 2017). 92 Johnson, Laisne and Wool (2015). 93 Ibid. 94 Ibid. 95 Mock. 96 Johnson, Laisne and Wool (2015). 97 Who’s in Jail and Why.

The Heinz Journal for loved ones.98 These tales included parents risking their homes, taking out additional mortgages, going without paying electric bills and rent, and forgoing purchases of school supplies for children.99 Pretrial detention was also linked with “lost wages, increased child care costs, mounting debts of all kinds, and unemployment after release.” 100 Being detained can trigger long-term consequences, like losing a job due to missed work shifts. In 2015, nearly 80% of those surveyed by the Vera Institute reported that “being jailed pretrial because they couldn’t post bail had a negative effect on employment later on.” 101 Approximately 85% of detainees in New Orleans are black, meaning much of that burden falls on the African American community. 102 A report published by the Data Center Research, in partnership with the Vera Institute, as part of the Center’s review of conditions in New Orleans 10 years after the hurricane, reached the following conclusion: Practically speaking, incarcerating people even if only for a few days (including those who are never convicted of a crime) causes them difficulties in almost every aspect of life for the foreseeable future. … These practices contributed to tragically high unemployment rates among black men.103 Many of the flaws of New Orleans’ prison system were pushed into the spotlight in the days following Hurricane Katrina, and there has been a large movement to enact reform driven by the public and advocacy groups. Plans for a smaller jail to replace the Orleans Parish Prison that was damaged by the hurricane were approved in 2011, 98

Mathilde Laisne, Jon Wool, and Christian Henrichson. “Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans,” January 2017. https://storage.googleapis.com/vera-webassets/downloads/Publications/past-due-costs-consequencescharging-for-justice-new-orleans/legacy_downloads/past-duecosts-consequences-charging-for-justice-new-orleans.pdf (accessed March 3, 2017). 99 Ibid. 100 Ibid. 101 Ibid. 102 Johnson, Laisne and Wool (2015). 103 Laisne, Wool and Henrichson (2017).

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putting pressure on law enforcement and other officials to reduce the incarceration rate. 104 New Orleans Pretrial Services, which is operated by the Vera Institute, and was initially funded by a grant from the U.S. Department of Justice’s Bureau of Justice Assistance, officially began operation in 2012 to evaluate the risk factors of defendants and provide recommendations to judges.105 A major element of the system that incentivized the use of money bail, the per diem provided to the Sheriff’s Office for each prisoner, was quietly eliminated in 2014. 106 The New Orleans Police Department also engaged in a new initiative designed to reduce incarceration by issuing summons for the majority of non-violent charges instead of making arrests and booking defendants into jail. 107 This resulted in police officers issuing summons for 70% of minor, nonviolent municipal charges, compared to arresting the same percent of people involved in similar cases before.108 All of these changes resulted in a steady decline in the prison population over the past decade, with the total prison population dropping to two-thirds of what it was in 2005.109 110

Despite improvement in recent years, New Orleans still has an incarceration rate that is twice the national average and large numbers of people

104 Bruce Eggler, “Smaller jail is approved by New Orleans

City Council,” The Times-Picayune, February 3, 2011. http://www.nola.com/politics/index.ssf/2011/02/smaller_jail_i s_approved_by_ne.html (accessed March 18, 2017). 105 “History of New Orleans Pretrial Services,” New Orleans Pretrial Services. http://pretrialnola.org/history/ (accessed March 18, 2017). 106 Charles Maldonado, “Mayor, sheriff quietly end muchcriticized per diem method for paying for prisoners,” The Lens, October 27, 2014. http://thelensnola.org/2014/10/27/mayor-sheriff-quietlyended-the-much-criticized-per-diem-method-for-paying-forprisoners/ (accessed March 18, 2017). 107 Johnson, Laisne and Wool (2015). 108 Ibid. 109 James Austin and Johnette Peyton, “Orleans Population

Projection Update,” The JFA Institute, February 2015. http://www.nola.gov/getattachment/Criminal-JusticeCoordination/Reports/Orleans-Parish-Prison-PopulationProjection-2015.pdf/ (accessed March 3, 2017). 110 The New York Times Editorial Board.

Cash Bail and Poverty are still being held pretrial.111 The creation of the New Orleans Pretrial Services led to 10% of defendants being released on their own recognizance, but the vast majority still face a monetary bail.112 As recently as March 2, 2016, 90% of those incarcerated in Orleans Parish Prison were waiting to appear in court. 113 Of those, 57% were facing felony offenses, which includes drug possession due to Louisiana law.114 Less than 4% of those waiting in jail for their trial were facing misdemeanor offenses. 115 The Vera Institute assessed 451 of the defendants from those two groups and determined 48% of them only posed a low or low-moderate risk to society if they were to be released without a money bail. 116 According to the Vera Institute, 1 in 4 of all defendants cannot pay bail amounts as low as $100 and a full twothirds of inmates surveyed in 2015 reported that it was difficult or very difficult for them to pay bail.117 The median bail at that time for those charged with a felony crime was $10,000, and even of those who were eventually able to post bail, 97% had to use a commercial bail bond to do so.118 Similarly, 70% of defendants facing misdemeanor charges that posted bail also had to use a commercial bond. 119 The amount of time people have to spend in the Orleans Parish Prison if they cannot pay bail is not trivial. On average, the 3,947 defendants who could not immediately afford to pay bail in 2015 were detained for 53 days per person. 120

set for them.121 Increasing the number of defendants who are released on non-monetary conditions would simultaneously reduce costs for the city while providing needed relief to those living in poverty, according to one 2015 report. 122 In the meantime, hundreds of people from lowincome households are presented with tough decisions when family members are required to pay bail for even minor offenses.123

In addition to disproportionately affecting those living in poverty, New Orleans’ continued reliance on the cash bail system is not cost effective. While the city was able to collect $4.5 million in revenue from bail, fines and fees, it cost $6.4 million to detain those who could not pay the bail that was

121 Ibid.

111 Laisne, Wool and Henrichson (2017). 112 Johnson, Laisne and Wool (2015). 113 Who’s in Jail and Why. 114 Ibid. 115 Ibid. 116 Ibid. 117 Laisne, Wool and Henrichson (2017). 118 Ibid. 119 Ibid. 120 Ibid.

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Harris County, Texas: A county facing a lawsuit Harris County, Texas, which includes the majority of the city of Houston within its borders, is home to the 4th largest jail in the U.S. 124 It is also a site where two major lawsuits are unfolding, both of which allege that the county unfairly detains its poorest residents because they cannot afford to pay bail.125 Both lawsuits were filed by the D.C.based Civil Rights Corps, in partnership with the Texas Fair Defense Project and the Houston law firm Susman Godfrey.126 The Civil Rights Corps is pursuing similar cases in multiple locations around the country. 127 The first lawsuit in Harris County was filed on behalf of Maranda Lynn ODonnell, a 22-year-old woman who has a 4-year-old daughter.128 At the time the lawsuit was filed on May 19, 2016, ODonell was being detained at the Harris County jail because should could not afford

122 Austin and Johnette. 123 Laisne, Wool and Henrichson (2017). 124 Breeanna Hare and Lisa Rose, “Pop. 17,049: Welcome to

America’s Largest Jail,” CNN, September 26, 2016. http://www.cnn.com/2016/09/22/us/lisa-ling-this-is-life-lacounty-jail-by-the-numbers/ (accessed March 20, 2017). 125 McGruder, et al vs Harris County, et al. U.S. District Court for the Southern District of Texas Houston Division. 2016. 126 Gabrielle Banks, "Harris County’s bail system in cross hairs as judge weighs temporary halt to cash payments,” Houston Chronicle, March 23, 2017. http://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-s-bail-system-incrosshairs-as-11024314.php (accessed April 12, 2017). 127 “Ending wealth-based pretrial detention,” Civil Rights Corps. http://www.civilrightscorps.org/ending-wealth-basedpretrial-detention (accessed March 17, 2018). 128 Odonnell, et al vs Harris County, et al. U.S. District Court for the Southern District of Texas Houston Division. 2016.

The Heinz Journal to pay a $2,500 money bail after being arrested for driving with an invalid license, according to the lawsuit.129 ODonnell held a job at the time of her arrest, but stayed with a friend while living paycheck to paycheck to save money on rent, so she did not have the financial resources available to pay the bail.130 Shortly after the first litigation was initiated, the Civil Rights Corps filed a second class action lawsuit naming 22-year-old Loetha Shanta McGruder and 26-year-old Robert Ryan Ford as plaintiffs; both were held on $5,000 bonds after being arrested on suspicion of unrelated misdemeanor crimes. 131 The lawyers behind the case argue that the defendants’ inability to pay was not taken into consideration when setting their bail amounts.132 McGruder was pregnant at the time of her arrest and had two other young children, a 4year-old boy with Down Syndrome and a second son who was only 9-months old, waiting at home.133 She was unemployed and lived with her boyfriend, supporting her family with social security benefits and child support. 134 Ford was also unemployed at the time of his arrest and lived with his girlfriend’s parents, helping with household responsibilities in exchange for housing, according to the lawsuit. 135 The two lawsuits provide a snapshot of the difficult situations many people face when they are arrested in Harris County, where 16.6% of the population lives in poverty. 136 The ODonnell case 129 Ibid. 130 Lise Olsen, “Harris County’s pretrial detention practices

displayed how deep the debate over setting a cash bail runs when the county’s newly elected sheriff, Ed Gonzalez, joined those testifying against Harris County in federal court on March 8, 2017.137 In his testimony, Gonzalez argued that “when most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system.”138 The majority of those being held at the Harris County jail are pretrial detainees.139 In January 2016, there was an average of 6,718 pretrial detainees being held each day, representing 78% of the entire jail population.140 The number of pretrial detainees has steadily increased over the years, with a 9% growth in the size of that group between August 2009 and January 2016.141 This has mirrored a decrease in the use of personal bonds, which is the equivalent of a defendant being released on their own recognizance instead of a money bail under Texas law.142 While in 1994 the courts released close to 9,000 defendants on personal bonds, that number had decreased to 4,273 by 2012. 143 This change in practice was not the result of a change in arrest rates or laws, but instead has been attributed to a change in judges and a move to “crack down” on

137 Michael Hardy, “In Fight Over Bail’s Fairness, a Sheriff

Joins the Critics,” The New York Times, March 9, 2017. https://www.nytimes.com/2017/03/09/us/houston-bail-reformsheriff-gonzalez.html (accessed March 18, 2017). 138 Ibid. 139 “Harris County Jail Population January 2016 Report,”

challenged as unlawful in federal court,” Houston Chronicle, May 19, 2016. http://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-s-pretrial-detentionpractices-7759726.php (accessed March 20,2017). 131 McGruder et al.

Harris County, Texas, January 2016. https://cjcc.harriscountytx.gov/Documents/Jail%20Population %20Presentation%20and%20Graphs%202016_01.pdf (accessed March 20, 2017).

132 Ibid.

142 “Depenalizing Poverty: A proposal for improving Harris

133 Ibid.

County Bail Policies,” Texas Fair Defense Project, 2014. https://www.pretrial.org/download/research/Depenalizing%20 Poverty%20A%20Proposal%20for%20Improving%20Harris %20County%20Bail%20Policies%20%20TFDP%202014.pdf (accessed March 18, 2017). 143 Mike Tolson, “Use of no-cash bonds drops in Montgomery, Harris counties,” Houston Chronicle, April 6, 2008. http://www.chron.com/news/houston-texas/article/Useof-no-cash-bonds-drops-in-Montgomery-Harris-1614613.php (accessed March 20, 2017).

134 Ibid. 135 Ibid. 136 United States Census Bureau. “QuickFacts for Harris

County, Texas.” 2011-2015 American Community Survey 5Year Estimates. U.S. Census Bureau’s American Community Survey Office, 2015. https://www.census.gov/quickfacts/table/AGE275210/48201/ accessible (accessed March 18, 2017).

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140

Ibid.

141 Ibid.

Cash Bail and Poverty crime.144 African-American defendants appear to be harmed most by the reduction in personal bonds. Even though only 18.9% of Harris County’s population is African American, they make up 50% of those detained in county jails and studies have indicated they are less likely to be released on their own recognizance or bail than defendants of other races, despite the fact that African Americans are arrested on more misdemeanor charges. 145 Overall, only 5.2% of Harris County’s defendants were released on personal bail in 2012. 146 Requiring a money bond for release impacts a large number of people living in poverty, considering that 71% of all felony defendants and 40% of all misdemeanor defendants in Texas are determined to be indigent.147In Texas, indigency is defined as “living at or below 125% of the federal poverty level.”148 Those who are unable to pay bail often spend significant amounts of time in Harris County jail. In December 2010, when half of the jail’s population was comprised of pretrial detainees, 30% was detained between 0 and 30 days, another 30% was detained between 31 and 90 days, 20% was detained between 91 and 180 days, and a final 20% was detained for more than 180 days. 149 Researchers estimated that it cost Harris County 144 Ibid. 145 Marcia Johnson and Luckett Anthony Johnson, “Bail:

Reforming Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County, Texas,” Northwestern Journal of Law and Social Policy (2012). http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1 /2 (accessed March 18, 2017). 146 James Pinkerton, “Judges leery of no-cost personal bonds,” Houston Chronicle, September 9, 2012. http://www.chron.com/news/houston-texas/article/HarrisCounty-judges-leery-of-personal-3851998.php (accessed March 20, 2017). 147 Marc Levin, “Bringing Balance to Pretrial Proceedings: Solutions for Early Representation of Indigent Defendants,” Texas Public Policy Foundation Center for Effective Justice, April 2015. http://www.texaspolicy.com/library/doclib/PPSolutions-for-Early-Representation-of-IndigentDefendants.pdf (accessed March 18, 2017). 148 Texas Department of Public Safety, “Indigency Program,” Undated. https://www.dps.texas.gov/DriverLicense/IndigencyProgram. htm (accessed March 31, 2018). 149 Johnson and Johnson.

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taxpayers $360,000 per day, at a rate of $59 per person, to detain defendants pretrial. 150 In contrast, it costs the State of Texas about $2.99 per day per person to support someone on probation. 151 The Texas Fair Defense Project reported that in Harris County, consequences for those detained because they could not pay for their bail included losing jobs and child custody, plus long-term difficulties with securing employment, due to not being physically present to take care of responsibilities.152 Additionally, pretrial detention can pose a threat to the safety of those who are detained at the jail for any amount of time. Patrick Joseph Brown, 26, died of a brain hemorrhage less than 48 hours after he was arrested on suspicion of stealing a guitar on April 3, 2016.153 He was being held at Harris County jail because he could not afford to pay a $3,000 bail bond when he was attacked by two other inmates. Prior to Brown’s death, 55 people had already died in Harris County jail while waiting for their trials between 2009 and 2015, most often due to suicide or health complications.154 Even if a defendant avoids violence during their stay at the county jail, just being there could negatively affect their future. Researchers at the University of Pennsylvania concluded there is a causal relationship between pretrial detention and case outcomes after studying the 380,689 misdemeanor cases that were filed in Harris County between 2008 and 2013.155 Of that 150 Levin. 151 Ibid. 152 Depenalizing Poverty. 153 James Pinkerton and Anita Hassan, “Inmate dies after

Harris County jailhouse beating,” Houston Chronicle, April 13, 2016. http://www.chron.com/news/houstontexas/houston/article/Inmate-dies-after-Harris-Countyjailhouse-beating-7244800.php (accessed March 20, 2017). 154

James Pinkerton and Lauren Caruba, “Tough bail policies punish the poor and the sick, critics say” Houston Chronicle, December 26, 2015. http://www.houstonchronicle.com/news/houstontexas/houston/article/Tough-bail-policies-punish-the-poorand-the-sick-6721984.php?t=373b57d418&cmpid=emailpremium (accessed March 20, 2017). 155 Paul Heaton, Sandra Mayson and Megan Stevenson, “The Downstream Consequences of Misdemeanor Pretrial Detention,” July 2016. https://www.law.upenn.edu/live/files/5693-harriscountybail (accessed March 18, 2017).

The Heinz Journal group, approximately 50% were held pretrial due to an inability to afford bail. 156 The study’s most noteworthy findings were that defendants who were detained pretrial were 25% more likely to plead guilty than defendants in similar situations who were released, and that those defendants held pretrial were also 43% more likely to be sentenced to jail.157 If they were sentenced to jail, the misdemeanor defendants who were held pretrial received sentences that were twice as long as those in similar situations who were able to secure pretrial release. 158 Based on these findings, the researchers concluded that “not only were these people deprived of their liberty on the basis of wealth; they were also deprived of equal access to justice.”159 At the core of the debate in Texas is the state’s own constitution, which grants a right to bail to almost all defendants who are not accused of a capital offense. 160 That stands in conjunction with a statute that requires judges to consider each defendant’s ability to pay different bail amounts when setting release conditions. 161 Evidence suggests that judges in Harris County regularly ignore the latter direction, failing to inquire into whether or not a defendant is able to pay a bail bond.162 This criticism has been pursued in court as part of the ongoing litigation, which alleged that judges did not attempt fulfill the responsibility they had to consider the financial resources of the named defendants. 163 Multiple videos showed judges setting bail for defendants not explicitly named in the lawsuits who were either mentally ill or homeless.164 This included footage of a judge imposing a $5,000 bond for a man who was 156 Ibid. 157 Ibid. 158

Ibid.

159 Ibid. 160 Texas Constitution. art. I, § 11.

http://www.statutes.legis.state.tx.us/SOTWDocs/CN/htm/CN. 1.htm (accessed April 13, 2017). 161 Texas Code of Criminal Procedures. Art. 17.15. http://www.statutes.legis.state.tx.us/Docs/CR/htm/CR.17.htm (accessed April 13, 2017). 162 Pinkerton and Caruba. Levin. 163 Hardy. 164 Ibid.

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arrested because he allegedly broke the law by sleeping under a freeway overpass. 165 The largest problem critics of Harris County cite is the use of a bail schedule by judges. The schedule makes recommendations for bail amounts based on the charges a defendant faces, with misdemeanor bond amounts ranging from $500 for a first offense to a maximum of $5,000 depending on prior convictions. 166 The bail amount is set in the presence of a prosecutor who can argue for a higher bail amount, but no legal counsel is provided for a defense. 167 168 Judges typically opt to use the bail amount recommended by the bail schedule, but occasionally increase the amount. 169 It is rare for a judge to decide to release a defendant on a personal bond or on a lesser bond amount, even though the law allows for them to use their discretion to make such decisions. 170 The U.S. Department of Justice weighed in on the subject of bond schedules, stating that: It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.171 In an article published in the Northwestern Journal of Law and Social Policy, two researchers further argued there is evidence that the bail schedule in Harris County conflicts with important precedent and laws: 165 Ibid. 166

Barry Mahoney and Elaine Nugent-Borakove, “Harris County Justice System Improvement Report: Phase 1 Report,” The Justice Management Institute, October 2009. http://www.jmijustice.org/wpcontent/uploads/2014/04/Harris-Co-Phase-1-Report.pdf (accessed April 13, 2017). 167 Ibid. 168 Depenalizing Poverty. 169 Mahoney and Nugent-Borakove. 170 Depenalizing Poverty. 171 “DOJ Statement of Interest - Varden v. City of Clanton,”

1. https://www.justice.gov/file/340461/download (accessed April 13, 2017).

Cash Bail and Poverty Neither the predetermined bail schedule nor the fact that the court generally considers factors for the purpose of increasing bail amounts appears to bear any rational relation to a legitimate government objective. In fact, basing bail on the detainee’s prior conviction directly contravenes the Fifth Circuit Court, which stated that pretrial detainees who have been previously convicted of a crime but fully served their sentences or fully paid their fines are entitled to be treated as detainees who have no prior conviction. Additionally, offenders of different races seem to face different bail standards.172 These researchers are not alone. Nearly every policy memo on the topic, including those affiliated with both sides of the political aisle, includes a recommendation that Harris County abolish its bail schedule or drastically revamp it so it is no longer based on the charges a defendant faces.173 174 Like in D.C., Harris County has a pretrial services agency to assist judges in assessing the risk of defendants, but the agency’s advice is not typically heeded. In 2011 alone, the Houston County Pretrial Service Agency screened a total of 80,000 defendants.175 Of those, the agency recommended that 40% of misdemeanor defendants and 25% of felony defendants be released on a personal bond.176 However, only 5.2% of both types of defendants were released on those non-monetary conditions, representing an approval of 7.4% of the recommendations for misdemeanor pretrial release and 1% of the requests for felony defendants.177 Carole Oeller, the director of the

Houston County Pretrial Services Agency at the time, told the Houston Chronicle that she believed judges put greater weight on the defendant’s charges than the risk assessments that were conducted by the county’s PSA. 178 The PSA has seen success in that of all defendants released pretrial on their own recognizance in Harris County, 94% appeared in court. 179 Furthermore, less than 4% of defendants released on a personal bond committed a secondary crime while waiting for their trial, with the majority of those charges being misdemeanor offenses. 180 On the Frequently Asked Questions page for Harris County’s Pretrial Services website, the agency’s posted response to the question “Why aren’t there more personal bonds approved?” was “Good question!” as of April 2017.181 To address these challenges, Harris County has made recent strides to reform its system and reduce inequality. It has much to gain from reducing the pretrial detention of people who are financially insecure. Researchers estimate the county could save millions of dollars each year, in addition to reducing wrongful convictions and improving public safety. 182 One recent improvement is the introduction of a county public defender office in 2011, although resources for the organization are stretched incredibly thin, with attorneys taking on more than the recommended caseloads.183 184 Other developments, including providing defense attorneys at the hearing where bail is set, were implemented in 2017. 185 The 178 Ibid. 179 Johnson and Johnson. 180 Ibid. 181 “Frequently Asked Questions,” Harris County Pretrial

172

Johnson and Johnson.

173

Nathan Fennell and Meridith Prescott, “Risk Not Resources: Improving the Pretrial Release Process in Texas,” Policy Research Project on Correctional Oversight, Lyndon B. Johnson School of Public Affairs Policy Brief, June 2016. https://lbj.utexas.edu/sites/default/files/file/Risk,%20Not%20 Resources%20Improving%20the%20Pretrial%20Release%20Process% 20in%20Texas--FINAL.pdf (accessed March 18, 2017). 174 Levin. 175 Pinkerton. 176 Ibid. 177 Ibid.

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Services. https://pretrial.harriscountytx.gov/Pages/FAQs.aspx (accessed April 13, 2017). 182 Heaton, Mayson and Stevenson. 183 Zoe Kirsch, “Court-appointed attorneys in Harris County

take on massive caseloads,” Houston Press, June 16, 2015. http://www.houstonpress.com/news/court-appointedattorneys-in-harris-county-take-on-massive-caseloads7513563 (accessed May 1, 2017). 184 Johnson and Johnson. 185 Mihir Zaveri, “Harris County to place public defenders at

bail hearings,” Houston Chronicle, March 14, 2017. http://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-to-place-publicdefenders-at-bail-11002089.php (accessed May 1, 2017).

The Heinz Journal changes represent a step in the right direction, but it is too early to tell how much they will be able to improve current conditions. The success of the introduction of public defenders at bail hearings, in particular, will be subject to how much funding is provided to support the endeavor. County commissioners will need to approve the hiring of additional attorneys for the program, which was initially slated to be carried out through February 2018 at an expected cost of over $1 million. 186 Preliminary results have not been made public as of March 2018. The pending litigation Harris County faces could prompt further reform in the coming years, so the situation in the county should be followed closely.

International Perspective Laws regarding criminal justice in the United States have diverged from their English roots to form a distinct and nuanced system, making direct comparisons with other countries difficult. No other country uses a criminal justice system that is exactly like the U.S. Nonetheless, studying the bail and pretrial detention policies of other countries can provide valuable insight into how the U.S. can improve its own criminal justice system by reducing unnecessary pretrial detention, which disproportionately harms the poor. This paper examines the systems in Germany and Finland because they are stable democratic countries that have undergone significant criminal justice reforms during the past century, including developing innovative alternatives to cash bail for pretrial defendants. While their systems cannot be replicated in whole in the U.S., largely because of their differing histories and socio-economic makeup, some policies could be adopted to fit the U.S. and help improve its criminal justice system.

Germany’s limited use of bail Germany is a country that focuses on resocialization and rehabilitation instead of punishment in response to criminal activity.187 In 186

Ibid.

187 Ram Subramanian and Alison Shames, “Sentencing and

Prison Practices in Germany and the Netherlands,” Vera

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Germany, courts are discouraged from using incarceration as a punishment for minor offenses.188 Most notably for this paper, even though the German criminal justice system does allow for bail, in practice it is rarely used and only applied to wealthy defendants.189 There are approximately 32 times more people incarcerated in the U.S. than there are in Germany.190 While some of this is explained by the difference in population sizes between the two countries, much of it is due to the discrepancy in incarceration rates. According to a 2013 report, the U.S. had an incarceration rate of 716 per 100,000 people, while Germany’s incarceration rate was significantly lower at 79 per 100,000 people. 191 Of those who were incarcerated, a larger proportion of detainees in the U.S. were waiting for trial than in Germany.192 When comparing the numbers, it is important to note that Germany has a broader definition of who it considers to be a pretrial defendant than the U.S. does. Given that, Germany reported that 15.7% of those incarcerated were being held pretrial, while the U.S. as a whole averaged 20.1%.193 Overall, Germany has seen a decline in the number defendants held pretrial. 194 Between 1992 and 2007 Germany saw a 25% increase in its total incarceration rate and the number of pretrial detainees also grew at that time, but much of the spike occurred in the 1990s and Institute of Justice, October 2013. https://www.vera.org/publications/sentencing-and-prisonpractices-in-germany-and-the-netherlands-implications-forthe-united-states (accessed April 13, 2017). 188 “Finding Direction: Expanding Criminal Justice Options by Considering Policies of Other Nations,” Justice Policy Institute, April 2011. http://www.justicepolicy.org/uploads/justicepolicy/documents /finding_direction-full_report.pdf (accessed March 3, 2017). 189 A.M. van Kalmthout, “Pre-trial Detention in the European Union: Germany,” edited by M.M. Knapen and C. Morgentern, Wolf Legal Partners, 2009. http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.194 .318&rep=rep1&type=pdf (accessed April 13, 2017). 190 Finding Direction. 191 Roy Walmsley, “World Prison Population List,”

International Centre for Prison Studies, 2013. http://www.prisonstudies.org/sites/default/files/resources/dow nloads/wppl_10.pdf (accessed April 17, 2017). 192 Finding Direction. 193 Ibid. 194 van Kalmthout.

Cash Bail and Poverty has been attributed to the reunification of Germany.195 It appears the proportion of prisoners detained pretrial has largely resumed its downward trend since then.196 For comparison, the incarceration rate in the U.S. grew by 50% during that same period.197 Specific numbers for how frequently cash bail is imposed in Germany are not available, but multiple reports indicate it is not used often. 198 If it were to be used, German law states that bail should be a “payment of an appropriate amount of money by the suspect or somebody else.” 199 The unpopularity of bail in Germany can be attributed to the fact that it is considered by many to be “unequal before the law.” 200 Sometimes, in place of a cash bail, the courts will opt to include a defendant’s passport or ID in the case files. 201 Most often, defendants are either released on nonfinancial conditions or remanded to custody, which is the equivalent of pretrial detention. 202 That pretrial detention is only intended to be used as a “means of last resort” when cases are considered especially extreme or complicated. 203 In particular, courts consider whether there is a high risk that the defendant will abscond, tamper with evidence, or commit a serious crime while waiting for trial.204 Courts also take into account the gravity of the crime, with special consideration given to cases that involve genocide, the formation of a terrorist organization, and crimes that resulted in a death.205 Of all factors, courts give the greatest weight to flight risk, with 93.1% of all decisions to detain someone pretrial citing it as grounds for detention in 2006. 206 All considerations are 195 Finding Direction.

van Kalmthout. 196 Ibid. 197

balanced by the German principle of proportionality, which promotes the rights of individuals and places high value on the assumption of innocence in criminal cases. 207 This serves as a strong argument against pretrial detention and is a large reason why pretrial detention is not used for the majority of cases in Germany. Along with highlighting its successes, it is important to note that Germany’s system for pretrial detention is not perfect. More than 99% of the defendants who are held pretrial are eventually convicted, which could be seen as an indicator of success because it suggests that pretrial detention is not being used to hold people who will be found innocent of the crimes they were accused of. 208 However, in some cases the pretrial detention itself is harsher than the sentence defendants ultimately receive. While 55.7% of those held pretrial do receive an unconditional prison sentence, 40% instead receive a suspended prison sentence, which is roughly the equivalent of being released on probation in the U.S. 209 210 Suspended prison sentences are frequently used because courts are instructed to release prisoners if their sentence is set for one year or less, and courts opt to release approximately 75% of those who have a sentence of up to two years as well. 211 Of those who were sentenced after being held pretrial, the remaining 10% who are not given an unconditional or suspended prison sentence were only ordered to pay a fine. 212 Researchers in the European Union have called the discrepancy between the severity of pretrial detention and the final sentence a defendant receives “problematic,” describing the pretrial imprisonment as being “adversarial to the rehabilitation ideal” that the

Finding Direction.

198 Ibid.

207 Ibid.

van Kalmthout. 199 Ibid.

202 Finding Direction.

Moshe Cohen-Eliya and Iddo Porat, “American Balancing and German Proportionality: The Historical Origins,” International Journal of Constitutional Law, April 2010. https://academic.oup.com/icon/article/8/2/263/699991 (accessed March 31, 2018). 208 van Kalmthout.

203 van Kalmthout.

209 Ibid.

204 Finding Direction.

210 Subramanian and Shames.

205 van Kalmthout.

211 Ibid.

206 Ibid.

212 van Kalmthout.

200 Ibid. 201 Ibid.

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The Heinz Journal country strives for. 213 The potential negative implications of this problem deserves serious consideration to further improve the criminal justice system in Germany and abroad. However, the problems Germany faces do not stem from wealth, so they do not disproportionately hurt the poor. Instead, defendants face these problems as the result of the nature of the crime of which they are accused of committing instead of their ability to pay a bail. As such, Germany’s model still provides an example of how the U.S.’s pretrial detention system can be improved. Considerations for the economic standing of defendants can be found throughout the criminal justice system in Germany. The government prefers fines as a form of punishment over incarceration, with 77.2% of sentencings involving a fine and only 7.5% involving imprisonment between 1995 and 2000. 214 For comparison, during that same period the in the U.S. 66.9% of sentencings involved imprisonment and 30.1% involved fines.215 While these fines would certainly be difficult for people living in poverty to pay, they are only imposed after a defendant has been found guilty, not before. 216 Additionally, the fees come in the form of a “day fine,” which is a sliding scale that determines the amount someone has to pay based on the seriousness of their offense and the amount of money the person earns in a day. 217 The severity of the offense is reflected by the amount of daily units the offender is ordered to pay, as opposed to the total sum of the fine.218 The purpose of this system is to “ensure that the fine has the same impact on offenders who have committed equally serious crimes but live under different economic circumstances.” 219 When it is not possible for someone to pay, community service can often be substituted for monetary payment.220

213 Ibid. 214 Finding Direction. 215 Ibid. 216 Ibid. 217 Ibid. 218 Subramanian and Shames. 219 Ibid. 220 Finding Direction.

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Advocates of the cash bail system argue that requiring a payment to secure freedom prevents defendants from reoffending while awaiting trial, but Germany’s sparing use of cash bail does not appear to be associated with a higher crime rate. Instead, in the decades where Germany’s incarceration and pretrial detention rates dropped, the country also saw a decrease in both the number of offenders and crimes committed. 221 Maintaining a smaller incarcerated population also helps Germany keep its spending down. In 2005, Germany’s law and order expenditure was only 1.2% of GDP, compared the U.S.’s 2.2%.222 Finland: A country without bail Another European country demonstrates how a more equitable and efficient criminal justice system can operate without any allowance of bail at all for its own citizens. In Finland, the only circumstance in which bail technically can be set is if someone who “has no habitual residence” in the country is accused of a crime and a court determines they pose a high flight risk. 223 However, even in those situations bail is almost never used.224 Instead of using bail as a means of ensuring the defendant faces trial, in the vast majority of cases courts allow defendants to be released pretrial on their own recognizance. 225 The 221 Jorg-Martin Jehle, “Criminal Justice in Germany: Facts

and Figures,” Federal Ministry of Justice and Consumer Protection, 2015. https://www.bundesjustizamt.de/DE/SharedDocs/Publikatione n/Justizstatistik/Criminal_Justice_Germany_en.pdf?__blob=p ublicationFile (accessed April 13, 2017). 222 Finding Direction. 223 Ulla Mohell, “Strengthening mutual trust in the European

judicial area – A Green paper on the application of EU criminal justice legislation in the field of detention, Finland Ministry of Justice Department of Criminal Policy, November 30, 2011. http://ec.europa.eu/justice/newsroom/criminal/opinion/files/11 0510/fi_ministry_of_justice_response_en.pdf (accessed April 26, 2017). 224 Ibid. M.M. Knapen, “Pre-trial Detention in the European Union: Finland,” edited by A.M. van Kalmthout and C. Morgentern, Wolf Legal Partners, 2009. http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.194 .801&rep=rep1&type=pdf (accessed April 26, 2017). 225

“Finland 2013 Human Rights Report,” U.S. Department of State, 2013. https://www.state.gov/documents/organization/220487.pdf (accessed April 26, 2017).

Cash Bail and Poverty government’s stated goal for pretrial detention is to “safeguard pre-trial investigation, court proceedings and enforcement of sentences as well as to prevent the continuation of criminal activity, which purpose shall be taken into account when considering alternatives to loss of liberty before and during trial.”226 This sentiment is influenced by Finland’s long-held belief that “criminal justice should remain the last resort in preventing crime,” which is grounded in the idea that all people should have access to equal treatment and equal opportunities.227 This has all enabled Finland to maintain one of the lowest proportions of pretrial detainees among its prison population that is observed anywhere in the world. 228 With a prison population rate of only 59 per 100,000 people in 2013, Finland is far below the U.S.’s rate of 716 per 100,000 people.229 It is especially interesting to examine the divergence in incarceration trends of the two countries. While the U.S. saw a 50% increase in its incarceration rate from 1992 to 2007, Finland achieved a 33% decline in its incarceration rate during that same time period. 230 Finland’s low use of pretrial incarceration has contributed to these low numbers. Of all prisoners in Finland, only 17.1% were being held pretrial in 2009, compared to 20.1% in the U.S. Considering the large difference in population sizes, the 3% difference translates into many more people being held pretrial in the U.S. To determine whether or not a defendant should be remanded to incarceration, Finnish courts first consider the severity of the sentence they may face.231 If the punishment for the crime is less severe than imprisonment for one year, they cannot be remanded. 232 Defendants who were arrested on suspicion of a crime that carries a sentence of at least one year of incarceration can be held pretrial if they are determined to meet

certain risk factors. 233 In particular, courts evaluate the likelihood that the individual will abscond before trial, attempt to hinder the investigation, or engage in further criminal activity. 234 Defendants facing at least one year of imprisonment can also be remanded if they refuse to provide information about their identity, or in the event that the defendant does not have a permanent residence in Finland and investigators believe they will leave the country to evade the criminal investigation. 235 Great care is given to avoiding unnecessary detention, but Finland has taken extra steps to ensure that its legal system does not negatively impact defendants. One way it does this is by paying defendants an average of 100 euros per day detained as compensation for deprivation of liberty if they were detained but charges were never brought against them or they were later found to be innocent.236 The Act on Compensation from State funds for the Arrest or Detention of an Innocent Person, which was enacted in 1974, specifically states that the funds are given to help make up for “direct costs, loss of income and suffering.”237 This consideration further reduces the criminal justice system’s impact on people living in poverty. Pretrial detention is not the only tool available for Finnish courts to ensure a defendant will appear at their trial. Instead of ordering that a defendant be imprisoned pretrial, the courts can impose a travel ban.238 In cases where the defendant faces a maximum penalty of at least one year in prison, the travel ban can be recommended. 239 The conditions for when a travel ban can be imposed are similar to those considered for ordering that a defendant be remanded to prison. Specifically, there needs to be evidence that the defendant will abscond or engage in further criminal activity. 240 As the name suggests, the travel ban “entails restriction of movement,” such as that the 233 Ibid.

226 Mohell.

234 Ibid.

227 Knapen.

235 Ibid.

228 Ibid.

236 Knapen.

229 Walmsley.

237 Ibid.

230 Ibid.

238 Mohell.

231 Mohell.

239 Ibid.

232 Ibid.

240 Ibid.

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The Heinz Journal defendant must give their passport to law enforcement officials and “stay within a certain area or in a certain location.” 241 The defendant may also be required to “be available at home or work at a certain time, to report to the police, or an obligation to stay in a hospital or other facility.” 242 The current travel ban is not often used as an alternative for detention, but a proposal to Finland’s parliament was recently put in motion that would create an “intensified” travel ban for situations where stricter travel restrictions could serve as a useful deterrent. 243 Additionally, under the recent proposal another substitute for pretrial detention would be a form of house arrest.244 Both of these measures would involve electronic supervision and are intended to further reduce the number of people who are held pretrial for long periods of time.245 Similar to Germany, in Finland fines are by far the most commonly imposed form of punishment at sentencing.246 Between 1995 and 2000, 75.8% of sentences involved fines, while only 7.2% involved imprisonment. 247 The Nordic country was actually the first to establish day fees as a tool for punishment and currently uses a system that closely resembles the one found in Germany. 248 Finland developed the system in 1921 to take ability to pay into consideration when determining a fair punishment for those who are found guilty of breaking the law. 249 The day fines, which can range from 1 to 120 days, are typically for an amount equal to approximately half of what the defender earns in one day post-tax, but can vary. 250 241 Ibid. 242 Knapen. 243 “Universal Periodic Review of The United Nations

Human Rights Council: Third National Report by Finland,” Finland Ministry of Foreign Affairs, January 2017. http://formin.finland.fi/public/download.aspx?ID=165363&G UID={345E07A1-E902-46C7-A249-CB999B4E91EA} (accessed May 1, 2017). 244 Ibid. 245 Ibid. 246 Finding Direction. 247 Ibid.

While the day fine system does occasionally result in wealthy people paying extremely high fines since there is no cap on the amount a person can be ordered to pay, the system is popular among Finnish citizens.251 When the system was being reformed in 1999, four out of five people said they preferred income-based day fines to a flat fee. 252 Other post-trial alternatives to incarceration include community service, which is widely used, and a suspended sentence. 253 Finland was not always a model for low incarceration rates. In fact, it had one of the highest incarceration rates for European countries in the 1950s, when its rate was approximately 200 for 100,000 people, although it is important to remember that even that level was still significantly lower than the current rate in the U.S.254 Finland’s relatively high incarceration rate persisted at those levels through the following decades and did not drop to modern level of approximately 60 to 70 per 100,000 people until the early 1990s.255 Researchers have attributed the reduction in number of people who are incarcerated population to the “structural factors and ideological changes in penal theory” that came as a result of the social revolution in the 1960s, in addition to various criminal justice and legal reforms.256 257 The bulk of the reforms were driven

Manuela Dudeck, Frieder Dunkel, Routledge Frontiers of Criminal Justice, 2014. https://books.google.com/books?id=4ewABAAAQBAJ&pg= PA136&lpg=PA136&dq=finland+remand&source=bl&ots= MMWMCmHMg9&sig=rbVAaScfBIh22lROtawo2fQcLI&hl=en&sa=X&ved=0ahUKEwjesNUucPTAhWB5SYKHVWMDnc4HhDoAQgMAQ#v=onepage&q=finland%20remand&f=false (accessed April 26, 2017). 251 Joe Pinsker, “Finland, Home of the $103,000 Speeding Ticket,” The Atlantic, March 12, 2015. https://www.theatlantic.com/business/archive/2015/03/finland -home-of-the-103000-speeding-ticket/387484/ (accessed May 1, 2017). 252 Ibid. 253 Mohell. 254 Knapen. 255 Ibid.

248

Ibid..

249

256 Ibid.

Ibid.

257 Ikponwosa O. Ekune and Richard S. Jones, “Finnish

250 Tapio Lappi-Seppala, “Finland” in Long-term

Imprisonment and Human Rights, ed. Kristin Drenkhahn,

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Criminal Policy: From Hard Time to Gentle Justice,” University of Ottawa Press, June 1, 2012.

Cash Bail and Poverty by the emerging idea that “prison cures nobody.” 258 Because of this, “policies were enacted that prison sentences should rarely be used in smaller crimes and other penalty systems should be developed instead.”259 The one main criticism that Finland currently faces is that it has seen an increase in the average length of stay for pretrial detainees, but that has largely been attributed to the fact that people are not being held pretrial for less serious charges. 260 On average, defendants who were held pretrial in 2011 remained incarcerated for 3.5 months. 261 This represents an increase of about one month from previous decades.262 In 1995, the average length of stay for a pretrial detainee was 2.5 months. 263 While this relatively long pretrial detention period may be troubling in some circumstances, those who are incorrectly detained will be financially compensated for their loss of liberty, unlike acquitted detainees in the U.S. 264 Additionally, for those who are eventually found guilty, their pretrial detention time will be deducted from their ultimate prison sentence or related fines. 265 Finland’s lack of a bail system for its own citizens and sparing use of pretrial detention has not prevented it from being considered “one of the safest countries in the world.” 266 Out of all industrialized countries, Finland has one of the lowest recidivism rates and the lowest police-percapita ratio.267

Conclusion http://epublications.marquette.edu/cgi/viewcontent.cgi?article =1057&context=socs_fac (accessed May 1, 2017). 258 Ibid. 259 Ibid. 260 Knapen. 261

Mohell.

262 Knapen. 263 Ibid. 264 Ibid. 265 Ibid. 266 “Finland 2017 Crime and Safety Report,” United States

Department of State Bureau of Diplomatic Security Overseas Security Advisory Council, 2017. https://www.osac.gov/pages/ContentReportDetails.aspx?cid= 21197 (accessed May 1, 2017). 267 Ibid. Ekune and Jones.

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All of the legal systems discussed in this paper belong to democratic countries that tout the importance of a defendant’s presumption of innocence before being proven guilty by a court as a main tenant. However, the bail system in the U.S. places an unjust burden on the poor before they are even found guilty of a crime. Every year, hundreds of thousands of U.S. citizens experiencing financial hardship are put in difficult situations that can have lasting consequences simply because they have been accused of committing a crime. 268 This problem exacerbates a cycle of poverty, often disproportionately hurting minority populations. Examining the pretrial policies of Germany and Finland illustrates how using bail is not necessary to ensure public safety and reduce criminal activity. Furthermore, Washington, D.C. proves that criminal justice systems can operate without bail even in diverse communities within the U.S. Addressing this problem now is critical. The U.S. constitution specifies that excessive bail shall not be required, but it is easy to find numerous examples of how that standard is regularly violated by courts employing current bail practices. It is also clear that requiring a cash bail disproportionately hurts people of color. The Vera Institute’s Manhattan Bail Project in the 1960s provided early evidence that when defendants without high risk factors are released on their own recognizance, the vast majority will still appear in court even though they did not pay a monetary bail.269 If the policies promoted by the Vera Institute as a result of that project had been implemented more widely early on, as they were in D.C., millions of lives in the following decades could have been impacted for the better. In fact, the time at which those policies were proposed was the exact same time at which Finland began its efforts to reduce the incarceration rate within its borders. It is impossible to know whether the U.S. would have seen the same amount of success, but removing the requirement of paying a money bail to obtain freedom would have helped countless families who live in poverty. We cannot go back in time to change the policies surrounding bail 268 Pinto. 269 Kohler.

The Heinz Journal earlier, but we can take action now at all levels of government.

Recommendations First, the U.S. should follow the examples of Germany and Finland by banning any type of pretrial detention for people who are accused of a crime that carries a maximum sentence of less than one year imprisonment. This will greatly reduce the number of people who are being held on misdemeanor charges, as well as the number of cases where pretrial detention ends up being a more severe punishment than the final sentence. Second, jurisdictions throughout the U.S. should establish laws or policies that prohibit the use of cash bail as a means of securing release. Instead, courts should be required to release defendants on their own recognizance if they would have previously been eligible for release on a bail. In theory, anyone who is eligible for bail should not pose a safety or significant flight risk if released. The practice of purposefully setting bail at exceedingly high levels so a defendant cannot be released goes against the idea of fair bail set out in the U.S. Constitution. Rather, those defendants who pose a high risk should be simply detained without bail. While it is tempting to say that establishing pretrial services agencies alone would reduce unnecessary pretrial detention, that unfortunately does not appear to be the case. All three of the jurisdictions in the U.S. that we studied do have pretrial services agencies, but they have seen varying levels of success due to the prevailing local policies that govern the use of bail. The agencies in New Orleans and Harris County are relatively new compared to their Washington, D.C. counterpart so it is entirely possible they will help release more people with time, but the current evidence points to only modest improvements. In New Orleans, only 10% of defendants are now released on their own recognizance. 270 In Texas, judges only release 5.2% of defendants on nonmonetary conditions. 271 This is not surprising, considering the fact that Washington, D.C. faced

similar challenges after the establishment of its own pretrial agency. While D.C.â&#x20AC;&#x2122;s pretrial services agency played a critical role in pushing for the Districtâ&#x20AC;&#x2122;s later success, judges initially ignored much of the agencyâ&#x20AC;&#x2122;s recommendations to release low-risk defendants without requiring a monetary bail.272 It was not until legislation effectively banned the practice of setting bail in D.C. that the great reduction in pretrial detention occurred, helping thousands of defendants who would not have otherwise been able to pay a cash bail. 273 The effect of this change in policy was immediate; within the first six months, the number of defendants released on their own recognizance jumped from 63% to 80%. 274 Prohibiting courts from using bail in other jurisdictions would likely persuade judges to give greater weight to the recommendations made by pretrial services agencies and lead to similar increases in the number of defendants who are released on their own recognizance. The varying levels of success does not mean pretrial services agencies do not play an important role. In order to safely carry out a new system that does not involve bail, the presence of a robust and well-implemented pretrial services agency is essential. This is because pretrial services agencies enable criminal justice systems to confidently operate in a way that ensures public safety and efficiency while allowing for defendants to be released pretrial. As a result, jurisdictions that eliminate the use of cash bail will need to provide adequate funding to maintain or expand an existing pretrial services agency or establish a new one if an appropriate agency is not already in place. This can be achieved by using the money that will be saved by reducing the number of jail beds that are occupied by pretrial detainees. In recent years, approximately $9 billion has been spent on pretrial jail beds, representing 11% total spending on corrections.275 Some of that money would still need to be spent on pretrial detainees, since not everyone would be released under the new policies. However, the cost of releasing someone pretrial is far less than it would be to 272 Beaudin. 273 Ibid.

270 Johnson, Laisne and Wool (2015). 271 Pinkerton.

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274 Ibid. 275 Ibid.

Cash Bail and Poverty incarcerate them, so maintaining the services necessary to evaluate risk factors should be sustained by the savings. Finland and Germany demonstrate how countries can remain safe and efficient without using bail or having high incarceration rates. The system in Washington, D.C. proves that this can be applied even in diverse communities within the U.S. With the growing incarceration rate, discussion about criminal justice reform is becoming more frequent and bail reform is an important factor to consider when trying to reduce the amount of harm that is inflicted on people who live below the poverty level. Some states are joining in on the movement to reduce the use of bail, with New Jersey and other states implementing new laws that eliminate bail for specific types of low-level crimes.276 The coming years will show whether or not it worked. In the meantime, more jurisdictions in the U.S. would benefit greatly by looking at models of how criminal justice systems can operate without cash bail and implementing changes. They can create a criminal justice system that is more fair by eliminating pretrial detention for offenses that carry a maximum sentence of less than one year of imprisonment, establishing laws that prohibit the use of cash bail, and providing support for a robust pretrial services agency.

276 Joe Hernandez, â&#x20AC;&#x153;New Jersey eliminates cash bail for

people accused of some crimes,â&#x20AC;? Marketplace, January 9, 2017. https://www.marketplace.org/2017/01/03/wealthpoverty/new-jersey-eliminates-cash-bail-people-accusedsome-crimes (accessed January 14, 2017).

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journal.heinz.cmu.edu