Ep. 9 - America’s Incarceration Math

Ever wonder why the United States holds the top spot among major nations for incarceration—and what we could do differently without risking public safety? We sit down with Circuit Court Judge Robert Herzfeld, whose career spans prosecuting attorney, defense work, juvenile probation, and the bench, to map the real engines of the system and where reform delivers the biggest return.

Judge Herzfeld takes us inside the operations of a prosecutor’s office, the scale of felony caseloads, and the evolution from trial wins to outcome-driven approaches like adult drug court and HOPE Court. From there, we unpack the hard numbers: county jails often house a third to nearly half of people with diagnosable mental illness, and when addiction overlaps, the share can reach 75 to 80 percent. He explains why jail is a poor tool for clinical problems, how medication lapses trigger decompensation, and why the churn back to the streets drives both risk and cost.

The conversation turns to civil commitments and adult guardianships, where due process and respect—asking “What do you want me to know?”—shift outcomes in real time. We draw a clear line between the small cohort of truly dangerous offenders who must be incapacitated and the much larger group who are treatable with therapy, medication, coaching, and structured accountability. Drug courts emerge as a bipartisan success: frequent testing, swift responses, and services that stabilize people and reduce reoffending. The payoff is concrete—fewer crimes, fewer hospitalizations, lower incarceration costs, and more people working and supporting families.

If you care about safer neighborhoods, smarter spending, and justice that actually works, this conversation offers a grounded roadmap: treat what’s treatable, reserve prison for the irredeemably dangerous, and build strong transitions home. Subscribe, share this episode with a friend who loves data-driven policy, and leave a review to help more listeners find the show.

Transcript

Meet Judge Robert Hertzfeld

SPEAKER_00 0:08

Welcome everyone to the Radical Moderate podcast. I am your host, Pat O'Brien. And this week I am joined by Circuit Court Judge Robert Hertzfeld. Welcome to the show, Judge. Thank you for having me, Pat. It's a pleasure. Well, today we're going to talk really focus on the criminal justice system. And I think we're really probably going to get into a lot of things related to how mental health has been affecting that and continues to affect it. I want to give the audience just a little bit of your bio, which is pretty extensive. You've been practicing law for 25 years. You were an elected prosecuting attorney for four of those years. You've been a circuit court judge for 16, 17 years. I believe you also teach a class at a law school in Little Rock. By the way, your your courts in Benton, Arkansas, which is central Arkansas. Have I hit the high points there of your experiences?

SPEAKER_01 1:12

Sure. I was in private practice for six years also. I've been a city attorney. Uh I've been married for 27 years, two sons, both of whom uh are in law school in Little Rock as well.

SPEAKER_00 1:25

Well, it's become the family business, I see. Well, I want to open up by I I touched on it, the criminal justice system. If you would go into a little bit more detail on just your experiences there. What, like, for example, you were the prosecutor. What what does that mean? What was your job when you were the prosecutor? Sure.

Running A Prosecutor’s Office Like A System

SPEAKER_01 1:46

Well, I I uh in Arkansas, they're just called prosecuting attorney, but they are elected in other states, most uh, or in the movies, you would hear uh folks referred to as a district attorney. I was the elected attorney, prosecuting attorney for the 22nd Judicial District of Arkansas. And so that's a uh about 130,000 people, suburban, rural mix. Um, we had approximately a thousand or so uh felony cases filed uh each year while I was the prosecutor, had a staff of attorneys, seven uh times eight, depending on when we had some grant funding, uh support staff of around 15, 20 people. Um, and so it was it was the largest law firm in Selene County, uh, and it and is about the same size now. Um we handled course felony cases, also handled you know tens of thousands of traffic tickets during the time and missed in low-level citations and misdemeanors. It was an exciting time. I was relatively young uh coming into office. We we took over from a a prosecutor who had it capable in many ways, but had a different philosophy. Uh, and I felt like we made some important changes and updating and modernizing. Uh one particular one particular uh uh fact that I found to be astounding was that we were that the previous prosecutor was was renting our computers for$50 a month. And that was something that it was one of those things we just we needed to bring it into the modern to the new millennium. Uh, but so we I was I would say people here or wherever would say that I was aggressive, uh, but I was also proactive in creating lots of we I was the the founding uh prosecutor for Slane County Adult Drug Court. We created lots of different programs. It wasn't just about getting big victories in the in the in jury trials, which we did, uh, but it was about making uh taking a an overall approach towards what's best for our community, increasing safety, increasing uh awareness uh of the things that are out there to help to assist victims. We we increased um uh a lot of different things. I I don't want to talk about that too much because it's really kind of shockingly looking back, a short period of my career, um, but it was an important and a foundational one for where I am. As I mentioned earlier, I also was in private practice. So I I I uh handled criminal defense cases on the other side, uh was uh actually a juvenile probation officer before I went to law school. And so I had I'm I'm the only judge in Arkansas history that I'm aware of who's both been a juvenile judge handling juvenile um prosecutions or uh uh juvenile delinquency cases, who also was a juvenile probation officer. And so the main areas as a circuit judge that I hear currently are juvenile court, which is delinquency court crimes that have been uh committed or allegedly committed by folks under 18, and also dependency neglect cases, which in Arkansas we call often called DHS cases for children who have uh uh been abused or neglected. And then the other uh main area that I work on currently is is probate, which is decedent's estate. Someone has passed away, there's a will to be probated. Uh and the the area that I've probably done been the most active and involved is is in uh guardianships, both for young people, but also for adult guardianships. And I've had the uh opportunity to be involved in in modernizing a big part of the Arkansas probate code and making sure that adult uh wards who are subject to a guardianship or who maybe have additional rights that we're enforcing and carrying out. Um and then uh I guess the last current job that I have as an admit as a judge is I'm also serve as the administrative judge. It's it's a lot more responsibility without any additional pay or recognition, other than when I guess I give myself on podcasts, uh, where I work with the other judges and the other folks in the justice system to make sure that you know we have good systems in place that the cases are being handled and routed appropriately. Um, and it's so it's it's a broad uh area of the law that I've been involved with, you know, particularly as prosecutor in a private practice. And then up until the last eight years ago, I also did adult criminal cases and was involved and was the drug court judge. I also presided at times over our Hope Court, which is similar to drug court, uh, but is not restricted to drug offenders. Um so my whole career, my whole adult life, I've been interested in making things better and spreading information about that and working with team concepts and statistics and finding ways of improving things. And that's, you know, one of the things I was attracted to about your show is looking at the facts, making decisions and policy choices and decisions based on those facts, regardless of what one party might say or another.

From Tough Trials To Drug Court

SPEAKER_00 7:08

Well, I and I think it's going back to something you said earlier. I think it's really interesting that you described the prosecutor's office as the largest law firm in the county at the time, probably still is. And because what you're really saying is that there was a business that had to be run, the business of prosecuting, the business of moving people in and out of the criminal justice system. And I I want to start the discussion with a fact that just to me doesn't seem like it has to be this way. And I know there's so much more to it, and that is starting with the easiest thing to look at from a criminal perspective in my mind, which is the incarceration rate. So it in the United States, there's about maybe 1.8 to 2 million people who at any given time are in a county, state, or federal uh prison behind bars. And then, you know, but we're a large country, so you don't want to just look at the that number, you want to look at the per capita. Well, per capita estimates vary on all these, but about 530 people for every 100,000 people in an area in the United States are behind bars. And then if you look at places like China, which is obviously a lot bigger than us, but their incarceration rate, same uh metric, is 120 per 100,000, Russia's 300, uh Cuba is 700, and I've been to Cuba. I'll definitely do a show on Cuba someday, but Great Britain is 140. So, you know, US, say 530. The big countries of the big countries, we've got the highest per capita rate. Uh, Rwanda, maybe 600,000, uh, 600 people per 100,000. And I just look at that fact, Judge, and I say, I know there's a lot of reasons why it happens. I don't think it's just because we're soft on crime, that we just don't take it seriously. We don't, I I think no, we put people behind bars. And some people I've seen argue we need it, need even more people behind bars. It just leads me to ask the question what's beneath the surface? And I know one of the things that you touched on, you mentioned Hope Court, but mental health or whether it's a drug addiction, I don't know. Tell us, in these years of experience, when did you become aware that that was some of the driving forces that you needed to understand better in the system? Sure.

Juvenile Court And Guardianships

SPEAKER_01 9:36

And of course, well, maybe not, of course. Uh, one of the roles in Arkansas for prosecuting attorneys is handling uh the state's side of cases for civil commitments. And so I had one or more attorneys that from time to time would file petitions or assist citizens in filing petitions when uh they had a family member or a loved one who was undergoing a crisis. And we would file the paperwork, have the hearings, and as the prosecutor or the deputy prosecutor appear on behalf of the state saying that this person has significant issues that are related to their mental health or to, in some cases, to their addiction, such that they are homicidal, suicidal, or gravely disabled. That's kind of the magic words. Um, and so and and currently I preside over those same cases with a deputy prosecutor named Vince Schoptal, who is does an excellent job of making sure that people are treated fairly, but also that they're protected and that the community is protected. So, you know, of course, you know, as an attorney and as somebody who's active in the community, I was aware of mental health issues. And in fact, Saline County uh until the last few decades actually had the state, Arkansas State Hospital. And probably because of that, but also because we're centrally located, we have a large number of mental health facilities. There's actually four facilities in Saline County that have inpatient uh capacity and inpatient beds, and another another facility that has outpatient services uh in it and as well as day programs. So Celine County, uh for better or worse, the film the film Sling Blade was shot here on the grounds of the old state hospital. If you grow growing up in this community, as I did, you're just aware that there's hospitals and that there's a need and there's something going on. But that doesn't really come into focus until you you're responsible for that. And is being responsible for the commitments and handling those, and then and then even more so as a judge, handling and and being responsible for making sure that people are treated humanely and healthy and with respect. That in the first year or so of being on the bench, that was when I got, I guess my eyes were opened even wider, and I had a broader and better understanding of the challenges people faced. When I quite honestly, when I when I first took the bench, I wasn't terribly excited about having responsibility for civil commitments. Um, yeah, I was again pretty pretty young and had less experience certainly than I do now in the world. Um, but I was a little nervous about you know, somebody who has a a you know, speaking, you know, they're hearing voices, they're speaking gibberish, they're sitting in the table, you know, a few feet from me, and they're not in their right mind. And it took about a year of interacting with those people um for me to really understand they are they may be in and in those cases are going through a crisis, but they respond extremely well and appreciate the very basic thing that we all do as human beings, which is being treated with respect, having the opportunity to be heard, which is a fundamental part of our just our justice system, criminal or otherwise, and just treating them and seeing them and understanding that they are people, that they have families and friends and kids and you know, all of the relationships that we all have, and they are going through an extraordinarily difficult time. And when they did when almost always when they would might get agitated or start losing focus, if I could just redirect them and ask them, what do you want me to know? What are you going through? What what what do you have any questions? Those qu those things that any of us would want, and and the ways that anybody, any of us would want to be talked with and discussed with and heard, it made all the difference in the world. And then I began to relax more and and be able to be in the I don't know what you call it, the zone, but in a in a in a comfort zone or an appropriate place to communicate with these folks who are going through you know a nightmare. Um, and I got better at it, and then they they responded even more positively as I as I began to you know put that those experiences into use. So handling those kinds of cases and then and then very closely related, the adult guardianship cases. Uh more often they're dealing with folks that are older, who have dementia, uh starting to you know lose their self over time, but often uh in so and often in tangent in tangent with not tangent in uh coordination with a civil commitment, you have a family member who is stepping up or a friend who's stepping up to take personal responsibility for someone else to keep them out of the full justice system and and be responsible as the guardian. And and working with folks in that situation, and in my extensive experience with guardianships, it it became clear time and time again that the more people are treated with respect and listened to and given the help that they need and have the ability to make as many decisions of their own as they can, the better they are, and the better that all of us are, uh family members, friends, and in the community, because you know, society is a society is judged by how we treat those who can't help themselves and folks with mental health issues and children and you know people who are going through difficult times, all of those folks need our help. And if we come at it from that perspective, we are able to help them more, which makes us feel good, but also it's better for the community and better for those individuals and their families and loved ones. So just really being clear, direct, uh in the criminal cases with the understanding that accountability is a part of that treatment, yeah, and help helping them to be the best selves that they can be with treatment and medication and accountability. That's kind of where I've come after, you know, almost two decades on the bench and other years of hailing these types of issues.

SPEAKER_00 16:06

Judge, do you have a sense of, in at least in your experience through your courts, uh, do you have a sense of how many people are interacting with the criminal justice system and maybe not just taking accountability away, but that there's a certain element, maybe majority element, that at the end of the day, it's really because they have mental health issues that they don't have a solution for, and that's why they keep getting into trouble. Do you have any percentage or sense of how many people we're talking about? Absolutely.

America’s Incarceration Rate In Context

Civil Commitments And Due Process

SPEAKER_01 16:38

So in county jails across the country, there are plenty of statistics that will show you that it's anywhere from a third to 40% of folks in county jail, uh, jails across the country are suffering from, you know, often actively, uh, but and but it's certainly chronically suffering from mental health issues. And and you know, and that and it's a maybe a little lower, maybe a little higher and when you get to the prison systems, but the fact that it's a little it is a little higher in the county jails shows you that the folks who are going through these crises, crises, you know, they're not out, you know, we're on it, we're taping this on Halloween. It's not the slasher movie type things, it's people who are not able to function well, they may you know take something or do something that they wouldn't do if they were their best self or in frankly in their right mind. And so they and there's only so much the system is designed to handle that until they're locked up, and then you know, they do they do their time, they get out often while they're there. You know, some counties are better than others, but often while they're there, they're not getting the medications that they they knew need to be their best selves and to be able to handle them their business. And so they come out, they've decompensated, and then you then they're trying to go to friends and family who may or not may or may not be worn out or exhausted or have done all they can do and have to handle other things. And so they may become homeless, certainly are more likely to have an episode that causes them to be civilly committed and put into inpatient beds if we have a bed available. And certainly all of those circumstances make it harder to go see your physician, go see your psychiatrist, go see your therapist, be on your medications. And so all of those things are definitely tied in together to a significant degree. The the people that are in this type of situation, which is, you know, there's a bell curve here, folks who have an occasional you know, issue, perhaps depression, you know, they're dealing with things day to day, they often will get better and then they never have another issue. And then you have people that are diagnosed with serious, you know, chronic mental illnesses, schizophrenia, bipolar, ongoing depression that doesn't, they can't break. Um, and then you have that's the pop, that's about 5% of the population in the United States has a significant mental health diagnosis. And that's not counting the folks, you know, everybody in our lives, if you live long enough, you're gonna go through a rough patch and a tough time. But these are diagnoses, you know, diagnosed people. And then you also have layered on top of that in the criminal justice system, people who may have those issues or periodic issues, who also have something else wrong with their brain that is not treatable. Whether it's sociopathy or psychopathy, there are things, you know, narcissistic personality disorder, that is a disorder, but that's not something people can treat uh at this at this time anyway. And so those folks, the psychic, you know, that are diagnosed with psychopathy or sociopaths, they're the ones that are the really, really scary folks. They have something unfortunately missing from their from their state of being that causes them to see other people and not as people, but see them, you know, they're a wolf and they see sheep. Those are the ones the movies are about. Those are the ones that we all, you know, to some level are afraid of, and and you know, but there's not a whole lot of them, but there's more out there than we would like. But they're the ones who they're gonna hurt somebody sooner or later, or they're you know, whether it's financially or physically, and you really can't do much about those folks with medication or therapy. They're the ones that people think of when they think of the you know the asylum, that type of thing. But most people, that's the that's the top end of the of the bell curve. With most people are people like just like you and me, who you know had ups and downs in their lives, but they have a a chemical imbalance and the receptors in their brains function differently, and it causes them to have less control over their day-to-day ability to interact appropriately and to make good decisions. So those folks we can help. Let me ask you. Sorry, talk slow.

SPEAKER_00 21:06

No, it's all right. Well, let me ask you though, because you started off by let's just say a third, and to kind of round it off, that maybe as much as a third of people in our who are incarcerated have this issue. Let's just take that as a solid figure. Are you including or not including people who who really this the way they started down the criminal path was primarily drug addiction? Are you including them in that memory?

Learning To See The Person First

SPEAKER_01 21:34

That's just in it, I would say a third is a is a hard floor, and it's more likely to be 40 to 50 percent with mental health issues. And then if you stack addiction, whether it's alcoholism or drug addiction, on top of that, you're definitely looking at 75-80% of the incarcerated population is struggling with those things and and has struggled with those things to the point where they're you know it's contributed to their making very bad decisions and and and to you know endangering themselves or certainly other you know, other people or their property. So it's it's a huge chunk. And again, there's the that upper end, those scary that, you know, like for lack of a better term, those scary people that we've you know locked up, we can't fix them. And they're the ones you want to identify through criminal logic criminologic means of you know, what are the how do they view the world, how do they interact, how often are they back, certainly for violent offenses. And those are the folks that on the sentencing grid, not the sentencing grids, but the evaluations, they need to go and not be a part of society. They are not safe for that. Most of those 33%, uh, and then certainly of the other 40% or so of the addiction, we can hold them accountable. And and certainly if they know, you know, there's a pretty low standard for being found criminally responsible. But if they are criminally responsible, that means they at least know what they're doing is wrong. There is accountability, that's a necessary part of it, and it's important for our society. But once we've once we are punishing them by locking them up and separating them out, that doesn't mean it's a good idea to throw away the key for that big, huge chunk of this people these people we're talking about. If we can get them proper medication, get them uh treatment, that's not coddling anybody. That's protecting ourselves. Because eventually, for most of those people, they will get out again. And if they've gotten treatment, if they've gotten a better way of interacting and learn better ways of interacting and developing positive relationships, they're less likely to offend, they're less likely to hurt anybody for sure, and they're more likely to become taxpaying citizens who contribute not only to society through their work, but to their friends and family, instead of being a drag on them, they're they're a gain and a boost. And so it's you we can and we have seen where you can make these investments, they are less likely to re offend, less likely to have serious mental health episodes requiring hospitalization, um, and they're happier, which is you know good, and not just happier and gleeful, but like more satisfied in their life. And and and their friends and their family, their parents, their kids, their spouses, they all have a broader and better uh life and ability to live without being afraid all the time and worried about these people that they care about so much.

SPEAKER_00 24:44

Let me let me throw this out as I know we're using broad strokes here, but and I'll throw percentages just to make it easier to understand. But let's say that 40% of people who end up incarcerated, certainly within the criminal justice system, fit in that mental health bucket. Let's say another 40%, just keep the numbers easy to understand, are drug addiction and things, things of that nature, drug being around drugs, et cetera. And then let's just say 20% is the kind of everybody else. I think one of the things you're you're driving at here is there is a percentage of the population, and they are the ones that we see in the movies and in popular media that we just really can't do anything about. You did something wrong, you know what you're doing, you've made choices, and you need to be locked away, you're unsafe. I think what you're saying is, and again, using round numbers, there might be 80% of the population that we that there are things that we can do. It is am I painting a broad enough premise here?

Mental Health, Addiction, And Jail

SPEAKER_01 25:48

I mean, I think you're you're we're talking about 80%, but you are 100% right. Okay. So yes, and and even if they're never going to get out of prison, having medication and therapy makes them better prisoners and makes them safer, it makes the other people around them the um the guards and the and the the staff, it it's better for everyone if we don't treat people like dogs. Or not even dogs. We wouldn't treat dogs that badly. Okay. So if we have safe and secure facilities with appropriate treatment and counseling when it's when it's warranted, while they're there, it's safer and better and cheaper. And when they get out, it's better and safer and cheaper. And so, I mean, there is a direct correlation between money we spend in our society on mental health uh services and treatment to fewer people being incarcerated. There, there's a number of studies over the last 20 years, especially, where it's a direct line, and you can spend one dollar on health insurance or on medication, and you're saving two dollars to the society through incarceration, through loss, you know, not having crimes committed. So there's not losses, there's not people injured, there's not hospital bills, and those people, you know, often are again contributing to the society rather than taking from it. So it's you know, it is not it, it makes sense, it's smart, it's it's a it's a moderate way of approaching things. And it's one thing it's not, and I think one the drug courts have been a tremendous blessing to the United States for one for many reasons, but one policy reason is that Republicans have been embraced them. Okay, so it's not just the Democrat, uh, we want to treat and love everybody, but Republicans overwhelmingly embrace drug courts because they work, they're not perfect, but they do work. And but what that has done is shown that it's not a left or right issue. It's like putting money where it makes the best bang for your buck. I mean, that's I know you've you've said many times, and uh, you know, you are a capitalist. That's the best investment. Where are we gonna get our what's our OI? What's what is our return on investment? Helping people help themselves and be treated. Is the is it makes sense?

SPEAKER_00 28:19

Yeah, and and just we've got a couple minutes left in this episode. And I I want to hone in on something you said during that, which what you're really talking about, or what I heard, is the costs. You talked about kind of the external costs, the cost of people's lives, and that sort of thing. But earlier I I just discussed the cost of prison. I mean, the numbers, I don't know. Let's just say it's fifty thousand dollars per prisoner, like the numbers are big, and and when when you have such a high incarceration rate, yeah, I I'm just uh you do the math and it's this massive investment with no return that you get nothing in return. There's no tax money going, et cetera, it into the coffers. And so I guess what I would say as we come toward the conclusion of this episode, and and and we'll probably go into a deeper dive on mental health specifically and what can be done, you know, maybe solutions. But I would say um, as I've made my transition from being an attorney and and you go to law school and they teach you about you defend the constitution, because people said, how do you defend somebody who did it? I'm defending the constitution. These people have rights, democracy, it's all good. And I believe in all that. But as I've transitioned to becoming a businessman, I just look at the cost and say, this is crazy. Like, there's no way we need to be spending all this money. There's so many things we could spend money on. And I think you're kind of still, I think, looking at it from a legal perspective, which that is your job. But as I've made that move in my Brain, I'm like, this as a business, this business is failing. This is not working. And it's it's in desperate need of reform. So why don't you close on this episode? We're we'll go into the next episode and do a deeper dive on mental health, but just how would you summarize that broad picture for the listeners of the observations you've had over the last quarter century? Do you think the system is working? Do you think it needs radical change? Do you think it means moderate change? What's your assessment?

SPEAKER_01 30:33

I think the system is working relatively well. Um I do think, and other people are talking about what I'm talking about, and they're and they're doing something. And so we're on the edge of if if enough people are aware of it, and enough policymakers are aware of it, we're on the edge of having a breakthrough, especially on this issue related to mental health. So there's lots of in in a Republican state like Arkansas, there is more movement towards treatment and and and and transition from prisons. And so it just it's going to take a eventually there will be more people who understand and see it from that perspective, is than like we just talked about. If you can spend a dollar on a transition, you know, or$100 on somebody transitioning out and getting back into a safe community with treatment as necessary for that person, you're probably saving$200,$300 or more down the road. It's it's a smart investment in people. And aside from saving money, you're saving lives.

SPEAKER_00 31:39

Well, Judge, uh you sound more optimistic than I am at the moment. So I'm very interested in hearing what we're on the cusp of and some of these solutions. Uh for for this week, we're gonna we're gonna call it uh call it a show. So I've enjoyed uh listening to your perspective, Judge. And for this week, that is the POV of POBIS, and I think that's a good one.