Tackling Economic Inequality WE ARE NEW YORK’S LAW SCHOOL www.nyls.edu/impact

www.nyls.edu/impact
WE ARE NEW YORK’S LAW SCHOOL
Tackling Economic Inequality
FRIDAY, APRIL 17, 2015
9:00 a.m. – 9:15 a.m. (Auditorium)
WELCOMING REMARKS
Anthony Crowell, Dean and President,
Professor of Law, New York Law School (NYLS)
Ross Sandler, Professor of Law and Director,
Center for New York City Law, NYLS
11:30 a.m. – 12:45 p.m. (Auditorium)
HOME AND COMMUNITY
(This session is accredited for 1.5 CLE hours
in Areas of Professional Practice)
Moderator: Andrew Scherer, Policy Director,
Impact Center for Public Interest Law, NYLS
Andrew Scherer, Policy Director, Impact
Center for Public Interest Law, NYLS
Panelists:
Vicki Been, Commissioner, New York City
Department of Housing, Preservation, and
Development
9:15 a.m. – 10:00 a.m. (Auditorium)
BREAKFAST ROUNDTABLE
Benjamin Dulchin, Executive Director,
Association for Neighborhood and Housing
Development
Moderator: Errol Louis, Political Anchor,
NY1 News, and host of “Inside City Hall”
Panelists:
Eric Alterman, Author, Inequality and One City
Richard Buery, Deputy Mayor for Strategic
Policy Initiatives, City of New York
Maya Wiley, Counsel to the Mayor, City of
New York
10:15 a.m. – 11:30 a.m. (Auditorium)
INCOME AND WEALTH
(This session is accredited for 1.5 CLE hours
in Areas of Professional Practice)
Moderator: Carlin Meyer, Professor of Law,
Emeritus, NYLS
Panelists:
Steven Banks, Commissioner, New York
City Human Resources Administration/
Department of Social Services
Andrew A. Beveridge, Ph.D., President and
CEO of Social Explorer; Professor of Sociology
at Queens College and the Graduate School
and University Center of the City University of
New York
Saskia Sassen, Robert S. Lynd Professor of
Sociology, Columbia University
Paul Sonn, General Counsel and Program
Director, National Employment Law Project
Lance Freeman, Professor, Graduate School
of Architecture, Planning and Preservation,
Columbia University Rachel D. Godsil, Eleanor Bontecou
Professor of Law, Seton Hall Law School;
Chair, New York City Rent Guidelines Board
1:00 p.m. – 2:00 p.m. (Events Center)
LUNCH
Keynote Speaker: Governor Howard Dean
Introduction: Deborah N. Archer, Associate
Dean for Academic Affairs; Professor of Law;
Co-Director, Impact Center for Public Interest
Law; and Director, Racial Justice Project,
NYLS
2:15 p.m. – 3:30 p.m. (Auditorium)
FAMILY AND CHILDREN
(This session is accredited for 1.5 CLE hours
in Areas of Professional Practice)
Moderator: Lisa F. Grumet, Director, Diane
Abbey Law Institute for Children and Families,
NYLS
Panelists:
Gladys Carrión, Commissioner, New York
City Administration for Children’s Services
Melanie Hartzog, Executive Director,
Children’s Defense Fund—New York
Sophia Pappas, Chief Executive Officer,
Division of Early Childhood Education,
New York City Department of Education
Kim Sweet, Executive Director, Advocates for
Children of New York
3:30 p.m. – 4:45 p.m. (Auditorium)
ADMINISTRATION OF JUSTICE
(This session is accredited for 1.5 CLE hours
in Areas of Professional Practice)
Moderator: Deborah N. Archer, Associate
Dean for Academic Affairs; Professor of Law;
Co-Director, Impact Center for Public Interest
Law; and Director, Racial Justice Project,
NYLS
Panelists:
Elizabeth Glazer, Director, Mayor’s Office of
Criminal Justice, City of New York
Hon. Jenny Rivera, Associate Judge, New
York Court of Appeals
Nicholas Turner, President and Director,
Vera Institute of Justice
David Udell, Executive Director, National
Center for Access to Justice; Visiting
Professor from Practice, Cardozo Law School 4:45 p.m. – 5:45 p.m. (Fifth Floor Café)
RECEPTION
Tackling Economic Inequality
Economic Inequality in New York City: Causes and Solutions
TABLE OF CONTENTS
ADMINISTRATION OF JUSTICE PANEL .............................................................................................. 3
THE STATE OF THE JUDICIARY 2015, ACCESS TO JUSTICE: MAKING THE IDEAL A REALITY ........................ 3
MAYOR’S TASK FORCE ON BEHAVIORAL HEALTH AND THE CRIMINAL JUSTICE SYSTEM: ACTION PLAN BY THE
CITY OF NEW YORK MAYOR BILL DE BLASIO, 2014 .................................................................................. 28
VERA INSTITUTE OF JUSTICE, RELIEF IN SIGHT REPORT ........................................................................... 48
VERA INSTITUTE OF JUSTICE, A PROSECUTOR’S GUIDE FOR ADVANCING RACIAL EQUITY REPORT...... 110
VERA INSTITUTE OF JUSTICE, INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN
AMERICA REPORT .................................................................................................................................... 154
VERA INSTITUTE OF JUSTICE, WRITTEN TESTIMONY OF NICHOLAS TURNER ......................................... 210
002
N E W
THE
Y O R K
S TAT E
U N I F I E D
C O U RT
S Y S T E M
STATE OF THE JUDICIARY 2015
ACCESS TO JUSTICE:
MAKING THE IDEAL A REALITY
J O N AT H A N L I P P M A N
C H I E F J U D G E O F T H E S TAT E O F N E W Y O R K
003
THE
STATE OF THE JUDICIARY
2015
ACCESS TO JUSTICE:
MAKING THE IDEAL A REALITY
J O N AT H A N L I P P M A N
C H I E F J U D G E O F T H E S TAT E O F N E W Y O R K
F E B RUA RY 17, 2015
C O U R T O F A P P E A L S H A L L , A L B A N Y, N E W Y O R K
004
JONATHAN LIPPMAN
CHIEF JUDGE OF THE STATE OF NEW YORK • CHIEF JUDGE OF THE COURT OF APPEALS
A. GAIL PRUDENTI
CHIEF ADMINISTRATIVE JUDGE OF THE COURTS
ASSOCIATE JUDGES OF THE COURT OF APPEALS
SUSAN PHILLIPS READ
EUGENE F. PIGOTT, JR.
JENNY RIVERA
SHEILA ABDUS-SALAAM
LESLIE E. STEIN
EUGENE M. FAHEY
PRESIDING JUSTICES OF THE APPELLATE DIVISION
LUIS A. GONZALEZ
FIRST DEPARTMENT
RANDALL T. ENG
SECOND DEPARTMENT
KAREN K. PETERS
THIRD DEPARTMENT
HENRY J. SCUDDER
FOURTH DEPARTMENT
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STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
005
TABLE OF CONTENTS
INTRODUCTION .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
GRAND JURY REFORM .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
BROWNSVILLE COMMUNITY CENTER
A STATEMENT OF POLICY ON CIVIL GIDEON .
. . . . . . . . . . . . . . . . . . . . . .
6
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
CLOSING THE JUSTICE GAP .
NON-LAWYER ADVOCATES .
INDIGENT CRIMINAL DEFENSE .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
NATIONAL SUMMIT ON HUMAN TRAFFICKING AND THE STATE COURTS.
TRANSFORMING ATTORNEY DISCIPLINE IN NEW YORK .
11
. . . . . . . . . . . . . .
12
. . . . .
14
. . . . . . . .
15
. . . . . . . . . . . . . . . . . . . . . . . . . .
16
MOVING TOWARDS A DIGITAL FUTURE: MANDATORY E-FILING
CONTINUED LEGISLATIVE PRIORITIES .
BAIL REFORM .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
16
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17
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18
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19
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20
WRONGFUL CONVICTIONS
ENSURING FAIRNESS FOR JUDGES: THE SALARY COMMISSION
CONTINUING ON THE ROAD TO RECOVERY:
THE JUDICIARY ’S 2015-2016 BUDGET . . .
CONCLUSION .
10
. .
RESTORING INTEGRITY TO THE FIDUCIARY APPOINTMENT PROCESS.
JUVENILE JUSTICE .
1
TABLE OF CONTENTS
006
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STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
007
INTRODUCTION
A
CCESS TO JUSTICE IS THE DEFINING PRINCIPLE OF OUR COURT SYSTEM.
It
manifests itself in so many diverse ways in over four million civil, criminal, and
family proceedings in court houses across New York State. Access to justice means ensuring that litigants have meaningful representation when their liberty or the very necessities of life are at stake. Access to justice is the issue when citizens struggle to
understand our justice system and the judicial process is hidden from view. Access to
justice is also front and center when rich and poor, the privileged and the disadvantaged
alike seek a level playing field before the courts, and it is what victims want when they
enter the halls of our courts desperately seeking assistance. And access to justice is the
driving force behind the court system’s determination to secure the resources necessary
to meet our constitutional mission of fostering equal justice.
Access to justice means that everybody — regardless of race, ethnicity or orientation, irrespective of wealth or poverty, whether we are mighty or weak — each and every
one of us gets his or her day in court. Equal justice, that defining principle of our country, requires that every human being has access to the courts and a judicial system where
the scales of justice are exquisitely balanced.
INTRODUCTION
008
1
GRAND JURY REFORM
I
N THAT CONTEXT, I START TODAY
with a subject that has transfixed our justice sys-
tem and the public over the last months in New York and nationwide — the crisis
emanating from deadly police-civilian encounters and the grave dangers faced by those
who protect us on a daily basis on our street corners and in our communities.
As Chief Judge, it is not my role to defend or decry a particular grand jury decision.
But the grand jury is a vital component of our judicial system — under the law, it is a
part of the court and an institution for which the Judiciary is ultimately responsible.
Of immediate concern are the perceptions of some that prosecutors’ offices, which work
so closely with the police as they must and should, are unable to objectively present to
the grand jury cases arising out of police-civilian encounters. Such perceptions, while
broad brush, clearly can undermine public trust and confidence in the justice system.
Let’s face it. Able and dedicated prosecutors and the grand jury process cannot win in
these inherently incendiary situations. Damned if you do and damned if you don’t, no
matter how strict the adherence to fairness and the rule of law.
To me, it is obvious that we need significant change in grand jury practices and
protocols in the world we live in today. Governor Cuomo and Attorney General Schneiderman have generated extensive debate by proposing that these cases might be handled
by a special prosecutor, albeit under different circumstances and at different stages of
the process. But what I propose today are solutions to this problem that directly follow
from the fact that, under the law, it is the court that oversees the grand jury and its protocols. First, I am submitting legislation1 that will require that grand jury proceedings,
in cases involving allegations of homicide or felony assault arising out of police-civilian
encounters, be presided over by a judge. While judges currently provide very general
“supervision” of grand jury proceedings, that role now merely entails providing only
preliminary legal instructions to the grand jury and occasionally ruling on contested
legal issues that arise. In this category of cases, I am proposing that a judge be physically
present in the grand jury room to preside over the matter. The judge would be present
to provide legal rulings, ask questions of witnesses, decide along with the grand jurors
1
2
www.nycourts.gov/publications/grand-jury-reform2015.pdf
STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
009
whether additional witnesses should be called to testify, preclude inadmissible evidence
or improper questions, and provide final legal instructions before the grand jury deliberates. This puts the ultimate responsibility for the grand jury where it belongs — with
the court, and it largely removes any negative perceptions about the grand jury process
in these cases of great public interest.
We must also address another highly debated issue, the secrecy of grand jury proceedings — and the legislation I submit will do just that. The strict secrecy of grand
jury proceedings — originating in medieval England and mandated in New York by
statute — can be detrimental to access to justice and public debate over issues of compelling public interest. Grand jury secrecy is based on several grounds: to prevent tampering with the grand jury’s investigation; to prevent the subject of the investigation
from fleeing to avoid prosecution; to encourage reluctant witnesses to cooperate; and
to protect those who are not indicted. While these are all laudable reasons for secrecy,
they do not justify the breadth of the current law that bans virtually all disclosure, and
although nominally allowing a court to grant disclosure, provides no guidance as to
when to do so.
When a grand jury indicts, the normal rules granting public access to court records
are generally adequate to ensure an informed public debate about the handling of the
case. Moreover, discovery rules in criminal matters precisely regulate the disclosure of
evidence during the pendency of a case. But in cases where a grand jury votes not to
bring charges — where no true bill emerges — the public is left to speculate about the
process, the evidence, the legal instructions, and the conclusions drawn by the grand
jury. In cases of significant public interest, secrecy does not further the principles it is
designed to protect but, in fact, significantly impedes fair comment and understanding
of the court process.
I am therefore proposing that we lift the veil of secrecy of these proceedings, without compromising the historical justification for secrecy. The legislation I propose today
would create a crystal clear statutory presumption in favor of the court disclosing the
records of a grand jury proceeding that has resulted in no charges, in cases where the
court finds that the public is generally aware that the matter is the subject of grand jury
proceedings; the identity of the subject of the investigation has already been disclosed
GRAND JURY REFORM
010
3
or the subject consents to disclosure; and disclosure of the proceedings advances a significant public interest. Upon such a finding, the court will be authorized to disclose
the record of the proceedings, including the charges submitted to the grand jury, the
legal instructions provided in support of those charges and, critically, the testimony of
all public servants and experts. The prosecutor would have the opportunity to redact
testimony that would identify a civilian witness and to move for a protective order upon
a showing that disclosure would jeopardize an ongoing investigation or the safety of
any witness.
These two legislative steps I have outlined — requiring an active, physical judicial
presence in grand jury proceedings investigating potential homicide or serious assault
arising out of a police-citizen encounter, and ending grand jury secrecy as we know it
— will enhance public access to, and confidence in, the justice system. This in turn
will help preserve the integrity of the judicial branch, law enforcement, and the institution of the grand jury — in many ways, a relic of another time that must be modernized and updated to meet the complex challenges of today’s justice system.
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STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
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BROWNSVILLE COMMUNITY CENTER
A
S IMPORTANT AS IT IS, GRAND JURY REFORM IS NOT ENOUGH.
At the end of
the day, public trust is the fuel that drives our justice system. Without it, it is
impossible to solve crimes, to adjudicate cases, and to convene juries. In short, without
trust there can be no justice.
Healing the rift that exists between the justice system and many of our communities will not happen overnight, and it will not happen without the effort of multiple
agencies — not just police but prosecutors, probation and, yes, the courts. But change
is possible, and we have seen it in community courts in Midtown Manhattan, Harlem,
and Red Hook, Brooklyn — where we have re-engineered the response to low-level
crime, emphasized alternatives like drug treatment, job training, and community service, and promoted great public confidence in the courts and the justice system.
We must look for other places that would benefit from the community justice
model. One such place is Brownsville, Brooklyn, which is one of the most violent neighborhoods not just in New York City but in the entire state, and where a recent article
about the neighborhood was headlined “Where Optimism Feels Out of Reach.”
Working with a range of partners — including the Mayor’s Office, the New York
City Council, the Brooklyn Borough President’s Office, and the Brooklyn DA’s Office
— we are developing a Community Justice Center for Brownsville that will provide
off-ramps for local residents who come into contact with the justice system, linking
low-level defendants to the kinds of services and supports they need to become lawabiding members of society.
The Center will be a state-of-the-art facility in the heart of the neighborhood. The
money is in place to proceed, and with the necessary approvals, I look forward to the
justice system playing a lead role in bringing trust and optimism back to Brownsville,
and with further efforts, to other communities around our state.
BROWNSVILLE COMMUNITY CENTER
012
5
A STATEMENT OF POLICY ON CIVIL GIDEON
W
HILE SCRUTINY OF OUR CRIMINAL JUSTICE SYSTEM
is the issue of the day,
we continue to face a crisis that involves the very legitimacy of the civil justice
system. Over the past five years, the Task Force to Expand Access to Civil Legal Services,
chaired by Helaine Barnett, has documented the desperate and unmet need for civil
legal services in our state.
In criminal cases, defendants have the guarantee enshrined in Gideon v Wainwright,
that “any person haled into court, who is too poor to hire a lawyer, cannot be assured
a fair trial unless counsel is provided for him.” In civil matters involving the essentials
of life — the roof over one’s head, family safety and security, subsistence income —
there is no such right to counsel. Therefore, I call on the Legislature today to pass a
joint resolution that makes it unmistakably clear as a matter of policy and principle
that low-income New Yorkers facing legal matters concerning the necessities of life are
entitled to effective legal assistance in civil proceedings. This would be the first statement
of its kind by a legislative body in our country — it would be the ultimate manifestation
of what is commonly known as Civil Gideon, the civil counterpart to the right to legal
representation in criminal cases.
This proposed joint resolution that I am submitting to the Legislature would announce — loudly and clearly — New York’s commitment to what we all believe is a
given in the year 2015: that New Yorkers living in poverty or with limited or modest
means must have effective legal assistance in crucial civil matters relating to their wellbeing, their livelihoods, and their families. Our society will and should be judged by
how we treat the most vulnerable among us. We ask the Legislature to make a bold
statement to show our conviction and resolve in insisting on equal justice for all New
Yorkers.
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STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
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CLOSING THE JUSTICE GAP
T
HE LEGISLATIVE RESOLUTION WILL MAKE ABUNDANTLY CLEAR
the policy of
our state. But what can we do now to meet our responsibilities to the most disad-
vantaged in society?
Over the past few years, we have been wrestling with this question and trying to
develop creative solutions. For example, last year, I announced the creation of the Pro
Bono Scholars Program, which allows law students to sit for the bar exam in February
of their third year in exchange for devoting their last semester of law school to full-time
pro bono work. Over a hundred New York law students in this program will very
shortly take the bar exam and begin their pro bono placements, collectively donating
over 48,000 hours to poor persons unable to afford counsel.
I have little doubt that for many participants, this experience will spark a life-long
interest in public service. Once this flame is lit, we shouldn’t extinguish it — we should
be actively looking for ways to encourage our best and brightest to become full-time
advocates for those in need.
That’s why today I am so pleased to announce the launch of Poverty Justice Solutions,2 a new program that will extend the reach of the Pro Bono Scholars program.
Each year, Poverty Justice Solutions will take 20 exceptional Pro Bono Scholars and
place them after graduation and admission in two-year fellowships with civil legal service
providers in New York. These attorneys will work at different agencies but they will all
be dedicated to the same goal: helping low-income New Yorkers preserve their housing
and preventing homelessness.
We know from hard-earned experience that the presence of a lawyer can be the
difference between a human being staying in her home or being evicted. Unfortunately,
we also know that the vast majority of tenants who come to Housing Court on an eviction case do so without representation.
It is estimated that Poverty Justice Solutions will enable civil legal service providers
to handle 4,000 additional matters each year — a significant contribution to closing
the justice gap. The first Poverty Justice Solutions attorneys will be selected this spring
2
www.nycourts.gov/publications/pdfs/Poverty-Justice-Solutions-CCI.pdf
CLOSING THE JUSTICE GAP
014
7
and will begin work following their graduation in June — none too soon given the dire
legal needs of thousands of low-income New Yorkers.
We have been fortunate to have the help of a number of partners in conceiving
Poverty Justice Solutions. The program is a public-private partnership involving the
Robin Hood Foundation, the Center for Court Innovation, the New York City Human
Resources Administration, and civil legal service providers in New York City. I thank
Mayor Bill de Blasio and Commissioner Steve Banks for expanding legal representation
funding across the board to address poverty and homelessness in the city. And I particularly want to thank Michael Weinstein of the Robin Hood Foundation for his commitment to finding creative ways to reduce poverty in New York.
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STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
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NON-LAWYER ADVOCATES
I
N OUR FIGHT TO CLOSE THE JUSTICE GAP IN NEW YORK STATE,
non-lawyers have
been an increasingly powerful force. Two years ago, I asked Roger Maldonado and
Fern Schair to chair a Committee on Non-Lawyers and the Justice Gap and to explore
ways that people without law degrees could make meaningful contributions to helping
low-income people with legal problems. Since then, we have established programs in
Housing Court in Brooklyn and in consumer debt cases in Civil Court in the Bronx.
These programs use “navigators” — trained non-lawyers — who provide an array of
services, including information, guidance within the court house, and moral support.
They assist litigants in completing do-it-yourself forms, assembling documents, identifying possible sources of assistance funding, and in certain cases, accompany litigants
and answer factual questions in the courtroom. The Navigators help litigants understand
the process and reinforce the timetables and responsibilities as set out by the court. The
Committee recently completed a report that demonstrates a marked difference in the
behavior of litigants accompanied by Navigators — a greater ability to more clearly set
out the relevant facts and circumstances and a significant increase in use of relevant
defenses for those litigants. We have shared the progress of this program with the New
York State Bar Association, which also sees the great promise of this exciting new concept.
I am pleased to announce today, that I intend to introduce legislation this year
that calls for a further level of involvement by non-lawyers in assisting litigants. This
proposal would codify a more substantial role for non-lawyers by establishing a category
of service providers called “Court Advocates” in Housing Court and in consumer credit
cases to assist low-income litigants.
While there is no substitute for a lawyer, the help of a well-trained non-lawyer
standing by a litigant’s side is far preferable to no help at all. We have already seen what
a difference it can make.
N O N - L AW Y E R A D V O C AT E S
016
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INDIGENT CRIMINAL DEFENSE
P
ROVIDING QUALITY LEGAL REPRESENTATION FOR INDIGENT PERSONS
ac-
cused of a crime remains both a legal obligation and a moral priority for our justice
system. Recent developments strongly suggest that our state is now on a fast track to
fulfilling the promise and mandate of Gideon v. Wainwright. The historic settlement
last fall of the Hurrell-Harring lawsuit means that, for the first time, the State has acknowledged that it bears responsibility to set standards and provide funds necessary to
ensure the high and uniform quality of representation for low-income people in criminal
cases. Moreover, the settlement vests responsibility for implementation of its stringent
provisions with the Office of Indigent Legal Services. Thus, the settlement honors two
foundational and fundamental principles: that the quality of representation in cases
legally mandated by Gideon is truly the responsibility of the State; and that the task of
securing needed improvement in the quality of representation must be vested in an independent and professionally staffed office.
Despite this welcome achievement, our efforts are far from over. The settlement
terms — which, most importantly, require implementation of caseload limits and provision of counsel at first court appearance — apply only to five of the state’s 62 counties.
And although the average institutional defender caseloads in those counties are currently
too high — nearly 500 per attorney, well in excess of the nationally recognized limits
— none of the five counties are among the 23 counties most in need, where average attorney caseloads exceed 700.
We simply do not have the luxury of waiting indefinitely to make progress in the
rest of the state. We must take full advantage of the momentum of the settlement and
the effective blueprint it provides. That is why the Office of Indigent Legal Services is
seeking $28 million from the Legislature for the upcoming fiscal year for what would
be the first phase of a five-year upstate caseload reduction and provision of counsel at
first appearance program. We can no longer tolerate the unacceptable circumstance in
this state in which the quality of justice one receives is dependent on the happenstance
of where one is charged and prosecuted.
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STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
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NATIONAL SUMMIT ON HUMAN TRAFFICKING
AND THE STATE COURTS
A
QUALITY INDIGENT DEFENSE SYSTEM IS FUNDAMENTAL
to access to justice,
and fighting the evil of human trafficking is also a vital component of ensuring
justice for all. The Judiciary has the ability to be a catalyst for change in addressing this
problem, and New York leads the way in this regard, at the forefront in developing responses to sex trafficking. In 2013, I announced New York’s launch of the nation’s first
statewide system of dedicated courts designed to intervene in the lives of trafficked
human beings.
I am pleased to announce today that on October 7-9, 2015, New York will host a
National Summit on Human Trafficking and the State Courts. The Summit will be financed by a nearly half million dollar grant from the federally funded State Justice Institute, which has done such great work in this area through the State Courts
Collaborative — of which New York’s Center for Court Innovation is an integral player.
Building upon New York’s experience and expertise in Human Trafficking Intervention
Courts, the Summit will provide a national platform for discussion among state court
leaders and will further the goal of building national, state, and local partnerships to
address the full scope of human trafficking. This groundbreaking Summit will be conducted in partnership with the National Center for State Courts, the National Conference of Chief Justices, and the National Conference of State Court Administrators.
Individuals charged with prostitution-related offenses are overwhelmingly victims
of trafficking, recruited or forced into the commercial sex industry. Jurisdictions and
courts around the country are just beginning to recognize this phenomenon. The New
York Summit will be a significant catalyst to raise consciousness about the nature, scale
and scope of human trafficking, and the role of the state courts in combating this modern day form of slavery, where victims, at the youngest of ages, are exploited by a vast
and evil industry.
N AT I O N A L S U M M I T O N H U M A N T R A F F I C K I N G A N D T H E S TAT E C O U RT S
018
11
TRANSFORMING ATTORNEY DISCIPLINE
IN NEW YORK
T
URNING TO THE LEGAL PROFESSION, an area in need of change in our own state
involves discipline for professional misconduct by lawyers. While an attorney’s
disciplinary history may not be the sole determinant in a potential client choosing an
attorney, there is no doubt that it is pertinent information that should be easily accessible, in the same way and for the same reasons that complaints against physicians are
public information when they result in a statement of charges or a final disciplinary action.
With this in mind, I am announcing today that we have centralized this information and made attorneys’ history of public discipline readily accessible on the Unified
Court System’s website. A simple click on the “Attorney Directory” link3 on the court
system’s home page allows a user to search for an attorney. In addition to displaying information such as the attorney’s year of admission and current registration status, this
search will now also provide the attorney’s “Disciplinary History.” The database includes
public discipline dating back decades and links readers to disciplinary orders issued
since 2003. However uncomfortable or inconvenient the facts may be, the public has
a right to know.
From a more systemic perspective, an efficient and effective attorney disciplinary
system is fundamental to the sound administration of justice. In assessing our current
system, commentators have raised important and challenging questions including
whether our departmental-based system leads to regional disparities in the implementation of discipline, whether conversion to a statewide system is desirable, and how can
we achieve speedier dispositions that give much-needed closure to both clients and attorneys.
With this in mind, I am extremely pleased to announce today the creation of the
Commission on Statewide Attorney Discipline. This new Commission, chaired by Chief
Administrative Judge A. Gail Prudenti, and made up of leaders from both the bench
and the bar whom I will announce in the near future, will conduct a top-to-bottom re3
12
http://iapps.courts.state.ny.us/attorney/AttorneySearch
STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
019
view of the system throughout the state to assess what is working well and what can
work better, and to offer recommendations on fundamentally reshaping attorney discipline in New York.
T R A N S F O R M I N G AT T O R N E Y D I S C I P L I N E I N N E W Y O R K
020
13
RESTORING INTEGRITY TO THE
FIDUCIARY APPOINTMENT PROCESS
M
EMBERS OF THE LEGAL PROFESSION AND OTHERS
are routinely appointed
by judges as fiduciaries to serve the courts and litigants — as a receiver managing
property during foreclosure proceedings, legal counsel for estates lacking designated
beneficiaries, or a guardian representing the interests of children or incapacitated
adults, to name just a few.
Over the years and in spite of the adoption 13 years ago of the current Part 36, an
administrative rule regulating the fiduciary appointment process, public trust and confidence have sometimes been compromised by allegations that the process is tainted by
favoritism, nepotism, or politics and that appointments result from factors other than
merit.
I am therefore announcing today the appointment of Deputy Chief Administrative
Judge Michael V. Coccoma as the Statewide Administrative Judge for Fiduciary Matters.
In addition to his other judicial and administrative responsibilities, Judge Coccoma will
be charged with monitoring and enforcing compliance with fiduciary appointment
rules throughout the state. Should a particular problem be identified requiring further
investigation, the complaint will be immediately referred to the Special Inspector General for Fiduciary Appointments, with whom he will work closely.
Through this proactive approach to monitoring compliance, we will streamline
and improve the fiduciary appointment process, eliminate loopholes, promote effective
appointments, and, most importantly, earn the confidence of the public that is the
bedrock of our system of justice.
14
STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
021
MOVING TOWARDS A DIGITAL FUTURE:
MANDATORY E-FILING
W
E ALSO MUST ENSURE
that our court procedures are consonant with the dig-
ital age and fully accessible to those who practice here. The New York Court
System’s experiment with electronic-filing began in 1999 with a limited pilot program
and has since expanded significantly.
Today, there are more than 57,000 active registered users of our e-filing system;
more than 800,000 cases have been e-filed, and over six million documents have been
e-filed. Universal e-filing will save New Yorkers more than $300 million annually, according to reliable estimates. This year, I will introduce legislation to empower the Chief
Administrative Judge to implement mandatory e-filing in Supreme Court in all counties
and in all classes of cases. It is time to end the “experiment,” fully embrace modern
technology, and by statute make e-filing a permanent part of New York practice.
M A N D AT O RY E - F I L I N G
022
15
CONTINUED LEGISLATIVE PRIORITIES
W
E ALSO MUST CONTINUE THE FIGHT
for our other legislative priorities that
remain unresolved.
JUVENILE JUSTICE
For the past several years, we in the Judiciary have repeatedly recommended legislation to end New York’s dubious distinction in being one of the only states in the nation to prosecute 16 and 17-year-old offenders as adult criminals. What a travesty!
Governor Cuomo, to his great credit, has now introduced legislation that adopts in full
the excellent proposals of the commission he created last year — a proposal that builds
on the thoughtful work of the court system’s own Sentencing Commission.
Although the Governor’s legislation differs in some respects from the Judiciary’s
bill, our principal concern is ensuring legislative action on this issue now — the long
and the short of it is, raise the age of criminal responsibility in New York to 18, period!
Let’s get a bill done this year and capitalize on the momentum that the Governor has
brought to the table — and end our shame in treating children as adult criminals.
BAIL REFORM
As a matter of common sense and of fundamental fairness, we again submit legislation to reform the way we make decisions affecting the pre-trial liberty of those accused
of crimes in our state.
Bail decisions should without question be informed by public safety considerations
and the need to protect New Yorkers on our streets and in our communities; it denies
reality to suggest otherwise. And a system that presumes an individual is innocent should
also presume that a non-violent individual should not be incarcerated pending trial
without good reason. We must ensure that pre-trial detention is reserved only for those
defendants who cannot safely be released or who cannot be trusted to return to court.
It is estimated that taxpayers spend a staggering $9 billion per year on pretrial detention across the country, and that 61% of jail inmates are in an unconvicted status
awaiting trial. So let’s make the safety of the public a statutory factor in New York bail
decisions and change the presumption of incarceration for defendants who are not a
16
STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
023
threat to public safety. This is critically important to the public purse and will save New
Yorkers tens of millions of dollars every year. What a boon for New York from a fiscal
perspective, and what a giant step for fairness in our state!
WRONGFUL CONVICTIONS
Another vital area for legislative action is wrongful convictions. There is no greater
failure in the criminal justice system than to unjustly deprive an innocent person of her
or his liberty.
One of my first tasks upon taking office as Chief Judge in 2009 was to form the
New York State Justice Task Force, now co-chaired by former Senior Associate Judge of
the Court of Appeals, the Honorable Carmen Beauchamp Ciparick and Westchester
County District Attorney Janet DiFiore. I am very pleased that two of the Task Force’s
most significant recommendations — the expansion of the State’s DNA Databank and
providing criminal defendants with greater access to post-conviction DNA testing —
have already been enacted. Three others await immediate legislative attention: requiring
video-recording of custodial interrogations by law enforcement throughout our state;
adopting procedural safeguards when the police conduct lineups and photo identifications; and reforming discovery laws to accelerate and broaden pre-trial disclosure of evidence in criminal cases. Passage of these three reforms is critical. When the innocent
are wrongfully accused, we all suffer.
CONTINUED LEGISLATIVE PRIORITIES
024
17
ENSURING FAIRNESS FOR JUDGES:
THE SALARY COMMISSION
A
ND LET’S TALK ABOUT OUR JUDICIARY,
the life-blood of the court system. A
talented and thriving Judiciary is absolutely essential to an effective system of jus-
tice and to every aspect of civilized society. If New York is to preserve the excellence of
its Judiciary, it must continue to attract high-quality candidates to the bench by ensuring
fair and competitive pay for its judges. After more than a decade of struggle and debate
over the vexing issue of judicial salaries, in 2010 New York took a historic step forward
by establishing a Special Quadrennial Commission on Judicial Compensation. This
April, the Commission will sit again with new members and will determine judicial
salaries for the next four years. I will be announcing the Judiciary’s two appointments
to the commission in the very near future, and we look forward to another very positive
chapter in our efforts to make the pay of New York’s judges reflect the critical work that
they do and their status as the absolute best state judiciary in the country.
18
STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
025
CONTINUING ON THE ROAD TO RECOVERY:
THE JUDICIARY’S 2015-2016 BUDGET
J
UDICIAL SALARIES, OF COURSE, ARE INCORPORATED IN A JUDICIAL BUDGET
that is carrying out our responsibilities under the Constitution and ensuring equal
justice in our courts. After years of no-growth attrition budgets, our current budget,
meticulously crafted by Chief Administrative Judge Prudenti, is allowing us to continue
on the road to recovery and ensure that we can deliver justice to the people of New
York.
But years of austerity have taken a considerable toll on our court system and the
delivery of services the public expects. Since 2009, the Judiciary has shouldered nearly
$400 million in increased costs and has lost more than 2,000 employees, significantly
impairing court operations. In order to prevent backsliding and maintain our ability to
serve the public, we again seek an increase in our budget. The proposed 2015-2016
budget carefully balances the Judiciary’s obligation to be a faithful steward of public
funds with our branch’s fundamental and independent duty to provide fair and timely
justice to every person who comes to our courthouses.
The budget also continues our commitment to helping the millions of litigants
who appear each year in cases without representation by providing significant additional
funding for civil legal services. We know that for every dollar invested in civil legal services, the State receives more than six dollars in economic benefit — through 2013 a
total economic benefit to New York of $769 million according to the most recent economic analysis. What a bargain for the well-being of our state and its fiscal strength!
THE JUDICIARY’S 2015-2016 BUDGET
026
19
CONCLUSION
S WE LOOK AHEAD,
A
I know I speak for my spectacular colleagues, all seven of
us — a full house, on the best high court in the nation, Susan Read, Eugene Pig-
ott, Jenny Rivera, Sheila Abdus-Salaam, Leslie Stein, and Eugene Fahey — in saying
that the New York State Judiciary is strong, committed, and prepared for the challenges
of the year to come and beyond. I want to salute our fabulous Chief Administrative
Judge Prudenti for her leadership, her wisdom, and her singular dedication to the pursuit of justice in our courts. I could not be more grateful to her and to our stellar and
wonderfully supportive Presiding Justices Luis Gonzalez, Randall Eng, Karen Peters,
and Henry Scudder, and to our preeminent judges and terrific court staff who together
are the heart and soul of our institution.
It is through all of their efforts and their steadfast commitment that the public is
served with such distinction and care, and that we are able to ensure that all New Yorkers
have access to our courts, each and every day. Access to justice is the overriding objective
behind each of the accomplishments, initiatives, and proposals that I present in this
year’s State of the Judiciary and those that have come before. Access to justice and equal
justice for all is the very reason we have courts, and it is the legacy that this Judiciary
and this Chief Judge aspire to leave for our great institution. Thank you.
J ONATHAN L IPPMAN
CHIEF JUDGE OF THE STATE OF NEW YORK
20
STATE OF THE JUDICIARY 2015 • Chief Judge Jonathan Lippman
027
Mayor’s Task Force on
Behavioral Health and
the Criminal Justice System
Action Plan
City of New York
Mayor Bill de Blasio
2014
028
1 | Action Plan
City of New York
029
Action Plan | 2
Letter from the Mayor
Dear Fellow New Yorkers,
New York City is at a pivotal point. A history of smart reforms has made
ours the safest big city in the country. To keep it that way, we need to be
committed to continuing to drive down crime.
Evidence and experts tell us that safety starts with effective police
strategies, but enduring crime reductions must embrace approaches that
go beyond police activity. We know that many of the issues that ultimately
end in time behind bars start well before and last well after contact with the criminal justice
system, and implicate many more players than the jail system alone. This is particularly true
for people with behavioral health issues. To serve New York and New Yorkers, we need to make
sure that the public safety and public health systems are working together and that we are
implementing the smartest, most effective strategies across the board.
In June, I called on government and community leaders in public health and public safety to
chart a path forward. The Task Force on Behavioral Health and the Criminal Justice System
rigorously mapped the gaps in our current systems and developed targeted solutions that look
not only at individual points in the system, but at how the system as whole operates. Where we
already have the information we need, we will act immediately. To fix the rest, we will involve the
best minds and methods in learning what we need to know and deploying solutions promptly.
This $130 million, four-year investment – with $40 million contribution in asset forfeiture funds
from the District Attorney of New York – is a key component of my commitment to reduce
unnecessary arrests and incarceration, direct criminal justice resources to where they will have
the greatest public safety impact, and make our City’s criminal justice system more fair...
Although there is much research and experience informing these recommendations, the standard
is a simple one: what is effective to improve public health and public safety?
Together, we can do both.
Bill de Blasio
Mayor
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3 | Action Plan
City of New York
031
Action Plan | 4
Contents
Page
2
Letter from the Mayor
5
Introduction
8
The Way Forward
8
Before Arrest and on the Street
9
Arrest through Court Processing
11
In Jail
13
Release and Reentry
14
In the Community
15
Next Steps
15
Oversight and Accountability by the Mayor’s Office
15
Metrics and Achieving Targets
15
Cost-Benefit Analysis and Evaluation
16
Conclusion
All photos are from the City Hall Flickr feed.
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5 | Action Plan
Introduction
Smart reforms have made New York the safest big city in the country. Protecting the long-term
public safety of New Yorkers requires that we remain committed to evidence-driven innovation
and improvement.
Over the last twenty years, this City has experienced the sharpest drops in crime anywhere in the
nation. As crime has fallen so has the City’s jail population – on October 30, 2014, there were over
1,000 fewer people detained than on the same day last year. While many factors contributed to
this extraordinary achievement, at its heart, the success was due to a focused effort to identify
who was committing crimes and where and then tailoring strategies to address those specific
problemsi. Amid this success, though, the number of people in the criminal justice system with
behavioral health issues has remained gridlocked.
Despite our success in reducing the overall jail population, the number of people with
behavioral health issues has stayed largely constant, with individuals with behavioral health
issues comprising a bigger and bigger percentage of the total number incarcerated. While
in FY 2010, people with mental illness were only 29% of the NYC jail population, today they
represent 38% of the overall jail population; approximately 7% of the jail population is made
up of individuals with serious mental illness, meaning that they suffer from diseases such as
schizophrenia and bipolar disorderii.
71%
66%
Individuals without
mental health issues
63%
11,408
11,827
Overall jail population
68%
12,287
12,790
13,049
NYC Jail Population
by Fiscal Year
62%
Individuals with
mental health issues
29%
City of New York
FY 2010
32%
FY 2011
34%
FY 2012
37%
FY 2013
38%
FY 2014
033
Action Plan | 6
The jails hold up a mirror to the rest of the criminal justice system. Although we need more data
and better focus on these individuals – something that the continuing work of the Task Force
will provide – the Task Force found that at every point, the criminal justice system has become
the default for addressing the problems presented by people with behavioral health issues,
whether at arrest, arraignment, confinement or in the neighborhood. When appropriate, the
criminal justice system has an important role to play, yet many people who cycle through the
system could be better served – and public safety improved – if their underlying conditions were
addressed effectively.
For many with behavioral health needs, the criminal justice system is a revolving door leading
to multiple costly, short stays behind bars over the course of their adult lives. In New York City,
a group of just over 400 individuals comprises the population that most frequently returns to
the City’s jails. According to a report from the NYC Department of Health and Mental Hygiene,
these 400 people have been admitted to jail more than 18 times in the last five years and they
show an even higher prevalence of mental illness and substance use disorder than the general jail
population—67% have a mental health need; 21% have a serious mental illness; and 99.4% report
substance use disorderiii. This group accounted for over 10,000 jail admissions and 300,000
days in jail during the five years examined in the report. Eighty-five percent of their charges were
misdemeanors or violations, raising a question about whether criminal justice resources are best
deployed with this populationiv.
In June of 2014, Mayor de Blasio launched a robust effort to address how the criminal justice
and health systems can work together better to ensure that we are reserving criminal justice
resources for the appropriate cases and deploying treatment and other proven effective
remedies to interrupt those needlessly cycling through the system. Under the leadership of
Deputy Mayor of Health and Human Services Lilliam Barrios-Paoli and Director of the Mayor’s
Office of Criminal Justice Elizabeth Glazer, the Task Force’s executive committee included
commissioners from City and State agencies, experts from the private sector, representatives
from law enforcement and behavioral health agencies, district attorneys, defenders, judges and
other court representatives, academics and service providers. The Task Force brought together
over 400 leaders and participants in this work from across the City and the nation. Over a 100day period, this group developed a comprehensive strategy to ensure that, when appropriate,
people are diverted from the criminal justice system and that justice-involved individuals with
behavioral health needs are connected to care and services at every point in the criminal justice
processv. At every stage, the Task Force coordinated its work with the Task Force on Juvenile
Justice Educational and Mental Health Supports (Juvenile Health Task Force), chaired by
Commissioner Gladys Carrion of the Administration for Children’s Services.
The Task Force recognized the interdependent and intersecting nature of the behavioral health
and criminal justice systems and looked at not only every point at which individuals come into
contact with the criminal justice system, but also the overlap between them. The comprehensive,
system-wide review was the first in the City’s history to consider each point of contact and how
each part of the system affects the other. The Task Force identified five major points of contact
and identified strategies for each:
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7 | Action Plan
On the
Street
From
Arrest to
Disposition
In Jail
Release
and
Re-entry
Back in
the
Community
Based on these five points of contact, the Task Force convened five working groups to address
the system point where each had the most expertise and, together with each of the other
working groups, to see how the points fit together. In addition, the Task Force went to each
borough and, with expert guidance, spent a day “mapping” how the criminal justice system
worked or did notvi. This mapping exercise engaged over 200 people from City and State
agencies, community providers, advocacy organizations, and consumers of behavioral
health services.
The recommendations of the Task Force focus on ensuring that, when appropriate, individuals
with behavioral health needs:
• do not enter the criminal justice system in the first place;
• if they do enter, that they are treated outside of a jail setting;
• if they are in jail, that they receive treatment that is therapeutic rather than punitive
in approach;
• and that, upon release, they are connected to effective services.
This plan sets out concrete and immediate next steps, a forward path to address those issues not
yet ready for implementation, and the vehicle to ensure expeditious and effective operations and
reliable assessments of what is working, at what cost, and with what benefit.
The comprehensive strategy developed by the Task Force is backed by evidence and informed
by widespread expertise. It will ensure that we continue to drive New York City’s crime rate even
lower by reliably assessing who poses a public safety risk and ensuring that we appropriately
address – not just at arrest, but well before and well after – the behavioral health issues that have
led many into contact with the criminal justice system.
City of New York
035
Action Plan | 8
The Way Forward
The issues that ultimately culminate in jail start well before, last well after, and implicate many
more players than the jail system alone. Failure or reform at any point affects the entire
system. The following strategies are organized along a continuum from initial contact with first
responders to return to the neighborhood. The Mayor’s Office will coordinate policy across
numerous city and state agencies and across multiple intervention points to ensure that the
strategies are implemented in a timely and effective way with a focus on 1) whether they are cost
effective; and 2) how the successful strategies can be replicated, sustained, and integrated into
the way the City does business.
Before Arrest and on the Street
On the
Street
STATUS
From
Arrest to
Disposition
In Jail
Release
and
Re-entry
Back in
the
Community
Protecting public safety requires the appropriate deployment of criminal justice
resources, but also the calibration of response when another approach is
required. Since 911 is often the call of first resort and since police who respond have
few options aside from processing those with behavioral health issues through the
criminal justice system, the Task Force, in line with national work in this area, looked
at the opportunities for diversion at first contact with law enforcementvii. The City
does not regularly quantify how many people with behavioral health issues come into
contact with first responders and how many are arrested when treatment could work
as well. The pilots below will permit us to collect and systemize information to better
understand the size and nature of the problem and appropriately plan and execute an
effective citywide response.
PLAN
Within the next year, the City will expand training and access to clinical advice
for first responders. The City will also increase options of places where first
responders can take those in need of services.
• Expanded training. Expanded training for police officers will enable them to better
recognize the behaviors and symptoms of mental illness and substance use; to
learn techniques for engaging people in respectful, non-stigmatizing interactions
that de-escalate crises; and to have tools for assessing what alternatives to jail or
hospitalization are appropriate for the specific situation and symptoms presented.
This revised and new training, informed by Los Angeles’ practices, will ultimately
be integrated into the police academy curriculum, but in the short term, will be a
stand-alone 36 hour training, which will engage more than 5,500 officers in two
target areas.
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9 | Action Plan
• Community-based drop-off centers. Diversion drop-off centers will provide an
option for people who need neither to be held for arraignment on low-level
charges nor emergency room services. The pilot drop-off center in Manhattan
will open in early autumn 2015 and the second center, which will be located in a
different borough and take advantage of the lessons learned at the pilot site, will
open in early 2016. The drop-off centers will be community-based, non-hospital
settings that have the capacity to assess, provide linkage to care, and offer crisis
beds for short-term stays. This model is based on promising pre-booking diversion
programs across the country, but will be tailored to New York City’s context and
offer 24-hour respite care, case management, and supervised withdrawal detox
services followed by referrals to on-going substance treatment as appropriate.
Arrest through Case Processing
On the
Street
STATUS
From
Arrest to
Disposition
In Jail
Release
and
Re-entry
Back in
the
Community
The science now exists – and is used with success in the City’s juvenile justice
system – to understand who can be effectively supervised in the community
and who must be detained. More than 355,000 people are arraigned in New York
City courts each year and about 80,000 are admitted to jailviii, and the Task Force
recommends applying the same science-driven risk assessment used in the juvenile
justice system to this adult population.
PLAN
To reduce crime and unnecessary incarceration, the City will implement
a set of interlocking strategies that will help ensure that we are using both jail and
programming wisely and with effect. The Task Force recommended that we improve
public safety by using a broad risk-based approach to inform decisions about
which defendants are most appropriate for an expanded array of supervised release
programs. Adopting the model used successfully in other jurisdictions, relevant
information will be gathered through a “risk assessment instrument” administered, in
many jurisdictions, by either a pretrial agency or by probationix. These instruments,
while not a substitute for human judgment, help judges and service providers make
better assessments of the risk of flight and whether risk to public safety can be safely
managed in the community rather than jail.
• Expanded supervised release. In the past decade, the City reformed its juvenile
justice system through the introduction of risk assessment to drive decisionmaking and the establishment of community-based alternatives, leading to
significant reductions in the use of detention and placement and lower recidivism
rates. Detention among juveniles dropped 25% overall and over 60% for low-risk
young people. Similarly during that period, rearrests while cases were pending fell
City of New York
037
Action Plan | 10
31% overall, and over 60% for high-risk young peoplexi. The City believes similar success can
be achieved with adults, and using the work done with juveniles as a model, will increase the
number of people who can be supervised in the community pre-trial, by 2,300 slots citywide,
in additional to the existing 1,100. This involves ongoing face-to-face and telephone contact
during the pendency of the case and increased connections to substance use disorder and
mental health services for those determined to be in need. Based on existing programs in
Manhattan and Queens, we know that approximately 85% of these individuals, who might
otherwise be incarcerated, successfully complete these programs.xii
• Scientifically-validated risk assessment tool. Pre-trial detention should be reserved for
individuals who pose a substantial risk of flight and who cannot be safely managed by
community-based programs outside of jail. Currently, New York State statute limits the
information that judges can consider in setting bail to information about the risk of flightxiii ,
but does not restrict the information that can be considered by supervised release providers
in assessing potential participants. New York City’s Criminal Justice Agency, the City’s
pre-trial services organization, provides a validated flight risk assessment instrument to
the court before arraignment to help inform release decisions. Within the next six months,
an arraignment-based pilot program will create and implement a validated assessment
instrument that accurately identifies and diverts people who do not pose a high risk of reoffending or flight if enrolled in supervised release.
• Universal screening for physical and mental health problems. Within the next year, the City
will launch a pilot program in Manhattan courts to, before arraignment, ensure that every
person arrested is for physical and mental health needs, including substance use. Those
with behavioral health needs will be flagged for possible diversion to services rather than
incarceration, except when safety issues prevent diversion. While the behavioral health
needs assessment is being implemented in Manhattan, the City will plan for the integration
of both risk and needs assessments across all arraignment courts and will seek to implement
assessment and screening as early in the process as possible to increase the number of
people identified as in need of services and eligible for release.
• Identifying and diverting veterans. The Criminal Justice Agency, which currently screens for
veteran status before arraignment, will include direct questions on veteran status, which will
trigger a notification to a designated borough liaison from Veteran Affairs (VA). The VA will
make available the appropriate services, including housing, and every effort will be made to
divert veterans from the regular criminal courts into Veterans Court.
• Strategy to reduce reliance on monetary bail. Currently, approximately 30% of all the
admissions to the City’s jails – roughly 25,000 people – are released within 72 hours, often
because it can take time to find funds to pay bail. Within the next year, the City will initiate a
planning process to the bail system. The goal is to minimize the use of money bail as
a surrogate measure of risk, by developing a scientifically validated risk tool which judges
can factor into their release decisions. In jurisdictions like Washington D.C., the combination
of risk assessment and a graduated continuum of supervised release programs helped the
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11 | Action Plan
City move away from a reliance on monetary bail, ensuring that incarceration decisions were
not determined solely by financial resources.
• Strategy to significantly shorten case processing times. The average length of stay in jail for
pre-trial detainees in Supreme Court cases has increased from 117 to 195 days over the last 18
years.xv Additionally, individuals with mental illness stay in jail approximately twice as long as
people without mental illness.xvi For those with behavioral health issues, the increased jail
stays can further exacerbate their symptoms.xvii The Mayor’s Office will join with key partners
to develop a response to this problem, issuing a comprehensive set of proposals within
six months.
In Jail
On the
Street
STATUS
From
Arrest to
Disposition
In Jail
Release
and
Re-entry
Back in
the
Community
Reducing violence is the overarching goal to enhance safety for both staff and
inmates, and addressing the treatment of this population is a key piece of that
strategy. The New York City Department of Correction (DOC) operates the second
largest jail system in the United States and admits nearly 80,000 people each year.
On any given day in NYC jails, approximately 7% of those detained suffer from serious
mental illness, 38% from a broader array of mental issues and more than 85% have
substance use disorders.xviii People with behavioral health needs stay longer, are more
likely to be both victimized and involved in violent incidents in the jail, are less likely to
make bail, and sometimes go without appropriate treatment and services.xix
PLAN
The City recently adopted and will continue to implement strategies to generally
improve the care and safety of people with behavioral health needs, with special
focus on youth. These de-escalation and evidence-based staffing and programming
strategies will be implemented in addition to completing the comprehensive review of
the jail system that is already underway.xx
De-Escalation Strategies
• Crisis intervention teams. DOC will work to decrease violence by using new crisis
intervention teams specially trained in de-escalation and symptom identification.
These specially trained units combine DOC and health service staff and will be
available to respond to incidents by February.
• Dramatically reduced use of punitive segregation. As part of DOC’s top-tobottom reforms of policies and practices and its focus on customizing custody
management, DOC will revise its sentencing guidelines and disciplinary procedures
in ways that keep the jails safer. Reforms will utilize alternative sanctions, eliminate
City of New York
039
Action Plan | 12
the practice of owed time, and curb disproportionately lengthy sentences. DOC will deploy
punitive segregation in swifter and more targeted ways to cope with serious offenses within
a continuum of sanctions. DOC will end punitive segregation for adolescents and implement
new guidelines for all populations by the end of 2014.
• Strengthened standards for use of force. Changes to the DOC’s Use of Force policy are
already underway, and training curricula will be revised to reflect these changes.xxi
Evidence-Based Staffing and Programming Strategies
• Specialized mental health care units. DOC and DOHMH will convert four existing Mental
Observation Units, which are sections of the jail in which individuals with serious mental
illness are housed, into units that provide more intensive and frequent mental health care for
people with acute mental health issues. The units, known as Program for Accelerated Clinical
Effectiveness (PACE) units, will expand upon the core principals of the Clinical Alternative
to Punitive Segregation (CAPS) model, which initial experience has shown improves health
outcomes and reduces inmate self-injury and violence. xxii
• Additional mental health training for corrections officers. DOC will provide all uniformed
officers with eight additional hours of annual training in how to manage people with mental
health issues.
• Specialized services for adolescents. DOC will provide training to officers who staff adolescent
units with training in trauma-informed care best practices in crisis management and will also
reduce officer-to-inmate ratios to 1:15 in adolescent units. Additionally, DOC will make physical
improvements to the Rikers School and install cameras throughout adolescent housing units.
• Plan to expand substance use disorder treatment. Substance use disorder treatment and
programs for reducing use and addiction will be assessed to determine the best way to
effectively address the needs of the population both inside and outside of jail. DOHMH and
DOC will establish targets, curricula, and recommendations for programming that meets
nationwide best practice standards within the next six months.
• Plan to expand programming to reduce idle time and violence. DOC will plan to expand
programming in all jails to reduce idle time and violence. Only 11% of individuals in the
general population currently participate in vocational skill-building activities, educational
programming, or discharge planning services.xxiii Development of a system-wide plan will begin
immediately and will be completed within the next six months.
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13 | Action Plan
Release and Reentry
On the
Street
STATUS
From
Arrest to
Disposition
In Jail
Release
and
Re-entry
Back in
the
Community
Ensuring that those in need are linked to Medicaid and to the extended network
of services and care managers provided by Health Homes can reduce re-offending
and returns to jail.xxiv Currently, discharge services are being provided to people in
NYC jails, particularly those with mental health issues, but services can be expanded
and enhanced to ensure the success of a broader range of individuals with behavioral
health needs.
PLAN
To improve discharge planning, the City will expand the reach of existing
discharge programs. The DOHMH’s and DOC’s current discharge and reentry
services for people who have been identified as having mental health issues will be
expanded to offer services to both populations at high-risk and at medium-risk of readmission to Rikers.
• Minimized disruption in public health insurance coverage. The City will establish
a Medicaid implementation team to continue working with the State to ensure
all eligible individuals are enrolled in and retain their Medicaid coverage, as
Medicaid coverage is suspended during incarceration and needs to be reinstated
after release.
• In-Jail Teams to Connect People to Programs. The City will expand existing
discharge programs run by the DOC and the DOHMH, which draw on national
best practices to provide people with the tools and support needed to ensure a
successful return to the community. People who participate in the program receive
assistance with housing, employment, parenting, and substance use treatment,
among other services. The program will be expanded to serve an additional
4,100 individuals.
• Connection to Health Homes. The City will provide oversight to insure that those
who are eligible are connected to Health Homes or other mechanisms available
to justice-involved individuals on Medicaid who require behavioral health services
and collect data on the results of meeting the needs of justice-involved individuals
through Health Home care coordination.
• Enhanced coordination. The City will establish a working group to ensure that the
various agencies that provide discharge and reentry services – DOC, DOHMH,
and corresponding Community-Based Organizations – tightly coordinate all
discharge planning. This working group will also coordinate discharge services with
the State’s Council on Community Re-Entry and Reintegration. . Additionally, the
City of New York
041
Action Plan | 14
working group will create a vehicle to chart who is signing up for which services and programs
before being discharged, to monitor effectiveness issues, and to create strategies to resolve
any issues.
In the Community
On the
Street
STATUS
From
Arrest to
Disposition
In Jail
Release
and
Re-entry
Back in
the
Community
The evidence is clear that connecting people with supports decreases the risk
of re-offending and re-arrest and improves their lives and the lives of those
around them.xxv
PLAN
Working across agencies, the City will implement a comprehensive plan that
expands access to supportive housing, employment, education, and other
appropriate services.
• Supportive housing. The Department of Homeless Services will launch a
scatter-site supportive housing program focused on individuals with behavioral
health needs and a history of cycling through criminal justice system who have
struggled with homelessness. The effort will create 267 permanent housing slots,
with supportive services, including mental health and substance use services. A
similar model, the Frequent Users System Engagement or FUSE program, was
found to significantly decrease shelter, hospital and jail stays, generating an annual
$15,000 public cost savings per housed participant when measured against a
comparison group.xxvi This program will be operating by the end of summer 2015.
• Planning team to expand housing for this population. Recognizing the foundational
importance of housing in stabilizing the lives and improving the treatment of
people with behavioral health issues, the City will establish a housing planning
team to assess access to more supportive, affordable, and public housing
for justice involved individuals with behavioral health issues, review existing
frameworks of federal, state, and city regulations, and develop strategies to meet
the housing needs of justice-involved individuals with behavioral health issues. The
planning team will convene for three months and present recommendations to the
Mayor’s Office for consideration.
• Supported employment and paths to self-sufficiency. A large majority of individuals
served by public behavioral health systems experience unemployment, yet models
that offer individuals supported employment and a path to self-sufficiency
exist.xxvii The City will make a plan to expand supportive employment programs
for individuals with criminal justice involvement and behavioral health needs by
042
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15 | Action Plan
assessing access and helping people to participate in existing employment and job readiness
programs and contracts. As part of this work, the City will also identify new employment
opportunities by expanding the role of peers (peer-training and standardized peer support)
across all system points. This planning will take place over the next 12 months.
• Behavioral health teams in the Department of Probation. To adequately and effectively meet
the needs of individuals on probation with behavioral health issues, a behavioral health team
will be established in the DOP which will include a coordinator in each borough. The team will
be established in March.
Next Steps
Beginning now, the Mayor’s Office will lead multi-agency teams to ensure 1) implementation of
both the projects outlined in this report as well as the ongoing planning efforts in several areas,
2) measurement of progress, and 3) accountability in achieving the goals laid out in the report.
• Oversight and Accountability. The Office of the Deputy Mayor for Health and Human
Services and the Mayor’s Office of Criminal Justice will be responsible for the oversight of this
plan and will convene the leaders of the agencies directly charged with implementation and
key stakeholders, including representatives from the provider and consumer communities, to
monitor the performance of the initiatives. The Mayor’s Office will publish quarterly reports on
the progress of the initiatives and related efforts.
• Metrics and Targets. Implementation of all of the actions in the report will include establishing
measures for process and substance outcomes as well as targets. These performance
measures will be published in the first progress report and systematically monitored and
reviewed.
• Cost-Benefit Analysis and Evaluation. To ensure that the City is getting the greatest public
safety return on its investments, the City will conduct an ongoing cost-benefit analysis to
ensure that the lives of people with behavioral health needs are improving, that the criminal
justice system becomes more efficient at diverting people out of the system, and that as
a result, costs for unnecessary incarceration decline and benefits to public health and safety
are calculated. In addition, the pilot programs that are to be initiated will be evaluated
to determine whether they should be adopted City-wide, modified, or replaced with
alternative approaches.
City of New York
043
Action Plan | 16
Conclusion
To make sure that New York City remains the safest big city in the country, we need to be
committed to what works. We have driven down both crime and the number of people behind
bars through a series of targeted reforms that reserve jail time for those who truly pose a public
safety threat. But the job is not over.
Research and experts tell us that lasting safety requires smart law enforcement and also an
investment in solid communities and efficient agencies that work together to make sure that
people get the right services at the right time. A comprehensive approach will mean not only
safer streets, but stronger neighborhoods and healthier people.
This plan is a key part of that goal.
In many cases, deploying traditional criminal justice resources is the best way to protect public
safety. Yet too often, people with behavioral health issues cycle through the criminal justice
system over and over again, without the treatment and services that could both change the
course of their lives and improve the lives of those around them.
Implementing the strategies in this plan will help to divert people with behavioral health issues
into treatment before they ever reach a jail cell. If they do end up behind bars, it will ensure that
they get the treatment they need. And this plan will put the systems in place to connect people
with supportive services as they transition out of the criminal justice system and set them up to
never return.
This plan is a key component of Mayor de Blasio’s commitment to reduce unnecessary
arrests and incarceration and to make the criminal justice system more fair. By equipping
law enforcement and corrections officers with more training and more options for effectively
interacting with people with behavioral health needs, this action plan will advance the Mayor’s
goal of deescalating interactions with law enforcement and help to improve relationships
between the police and communities.
We can continue to lead the nation in smart, effective reform. These strategies are not only more
humane and efficient, but they are an important part of keeping all New Yorkers safe.
044
nyc.gov/BHTF
17 | Action Plan
“How New York City Reduced Mass Incarceration: A Model for Change?,” The Brennan Center, The Vera
i
Institute for Justice, and the JFA Institute. January 2013.
Available at http://www.brennancenter.org/sites/default/files/publications/How_NYC_Reduced_Mass_
Incarceration.pdf
Approximately one third of this 38% meet the established criteria for “serious mental illness,” which includes
ii
major depression, schizophrenia, bipolar disorder, obsessive compulsive disorder, panic disorder, posttraumatic stress disorder and borderline personality disorders. The remaining two thirds have not been
diagnosed with serious mental illness, but have been incarcerated in the City for at least 24 hours and who
have received at least three instances of mental health treatment in the past and require further treatment.
Hearing on the Fiscal 2015 Preliminary Budget & the Fiscal 2014 Preliminary Mayor’s Management Report,
NYC Department of Correction, March 27, 2014,
available at http://council.nyc.gov/downloads/pdf/budget/2015/15/072%20Department%20of%20
Correction.pdf.
Rikers Island Hotspotters Analysis, Bureau of Correctional Health Services, NYC Department of Health and
iii
Mental Hygiene, July 2014.
Id.
iv
See Appendix for a list of Executive Committee and Working Group participants.
v
Hughes, D., Steadman, H.J., Case, B., Griffin, P.A., & Leff, H. S. (2012). A simulation modeling approach for
vi
planning and costing jail diversion programs for persons with mental illness. Criminal Justice & Behavior,
39(4), 434-446, available at http://www.prainc.com/a-simulation-modeling-approach-for-planning-costingjail-diversion-programs-for-persons-with-mental-illness/#sthash.T3w63m0y.dpuf
Criminal Court of New York Annual Report, 2012,
viii
available at http://www.courts.state.ny.us/courts/nyc/criminal/AnnualReport2012.pdf.
Laura and John Arnold Foundation, “Results from the First Six Months of the Public Safety Assessment –
ix
Court in Kentucky,” July 2014; “Developing a National Model for Pre-Trial Risk Assessment,”
available at http://www.arnoldfoundation.org/research/criminaljustice.
Vera Institute of Justice, “Juvenile Detention Reform in New York City: Measuring Risk through Research,”
x
Center on Youth Justice (New York: Vera Institute of Justice, 2011), available at http://www.vera.org/pubs/
juvenile-detention-reform-new-york-city-measuring-risk-through-research-0.
Id.
xi
Freda Solomon, “CJA’s Supervised Release Programs and Manhattan Start-up: Case Screening and
xii
Participant Selection Process.” New York: CJA, April 2014.
N.Y. CPL. LAW § 510.30 : NY Code - Section 510.30: Application for recognizance or bail; rules of law and
xiii
criteria controlling determination.
Justice Policy Institute, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, 2012.
xiv
NYC Department of Correction data, 2014.
xv
City of New York
045
Action Plan | 18
The Council of State Governments, Improving Outcomes for People withMental Illnesses Involved with New
xvi
York City’s Criminal Court and Correction Systems,
available at http://www.nyc.gov/html/doc/downloads/pdf/press/FINAL_NYC_Report_12_22_2012.pdf.
Jamie Fellner. A Corrections Quandary: Mental Illness and Prison Rules. Harvard Civil Rights Civil Liberties
xvii
Review 41. (391-412) 2006.
NYC Department of Correction data, 2014; NYC Department of Health and Mental Hygiene data, 2014.
xviii
Steadman, H.J., Osher, F.C., et al., “Prevalence of Serious Mental Illness Among Jail Inmates,” Psychiatric
xix
Services November 2007; 58: 1472-1478, (2009); David Cloud and Chelsea Davis. “Treatment Alternatives
to Incarceration for People with Mental Health Needs in the Criminal Justice System,” (New York, February
2013); Council of State Governments Justice Center, “Improving Outcomes for People with Mental Illnesses
Involved with New York City’s Criminal Court and Correction Systems,” CSG Justice Center Publications
(New York, NY: Council of State Governments Justice Center, 2012), available at http://csgjusticecenter.org/
courts/publications/improving-outcomes-for-people-with-mental-illnesses-involved-with-new-york-cityscriminal-court-and-correction-systems/.
Michael Schwirtz, “New York Hires Consultant to Create Rikers Island Reform Plan,” New York Times,
xx
September 8, 2014.
Id.
xxi
Testimony of Homer Venters, MD, Assistant Commissioner, Bureau of Correctional Health Services
xxii
New York City Department of Health and Mental Hygiene, before the New York State Assembly Committee
on Correction with the Committee on Mental Health regarding Mental Illness in Correctional Settings,
November 13, 2014, available at http://www.nyc.gov/html/doh/downloads/pdf/public/testi/testi20141113.pdf.
NYC Department of Correction data, 2014.
xxiii
Based on an analysis conducted by the DOHMH Correctional Health Services team in 2013, half of
xxiv
individuals entering jail are eligible for Medicaid but are not enrolled.
Urban Institute, Mapping Prisoner Reentry: An Action Research Guidebook,
xxv
available at http://www.urban.org/uploadedpdf/411383_reentry_guidebook.pdf.
Angela A. Aidala, et al. Frequent Users Service Enhancement ‘FUSE’ Initiative NYC Fuse II Evaluation
xxvi
Report. Columbia University Mailman School of Public Health, March 2014.
See recommendations made by NAMI in “Road to Recovery: Employment and Mental Illness,” 2014. In
xxvii
2012, according to SAMHSA, 84% of individuals served in public mental health systems in New York State
were unemployed. Source: SAMHSA, 2012 CMHS Uniform Reporting System Output Tables, available at
http://www.samhsa.gov/dataoutcomes/urs/urs2012.aspx.
046
nyc.gov/BHTF
Bill de Blasio
Mayor
047
CENTER ON SENTENCING AND CORRECTIONS
Relief in Sight?
States Rethink the Collateral
Consequences of Criminal
Conviction, 2009-2014
DECEMBER 2014
Ram Subramanian, Rebecka Moreno, and Sophia Gebreselassie
048
FROM THE CENTER DIRECTOR
As this report makes clear, the legal and life-restricting consequences of having a criminal
conviction are many, varied, and often bewildering. They can impact the most fundamental
necessities of life—like a job, a place to live, and education—and affect not just the individuals with convictions but also their families. In some jurisdictions, they are onerous and
numerous; you have to wonder what their creators thought they would accomplish in terms
of enhancing public safety.
The breadth and reach of collateral consequences are indeed wide when one considers the
range of behaviors that are considered felonies in most states: from possession of drugs found
to indicate an “intent to distribute” or stealing $500 worth of goods from a garage to more
clearly serious offenses, such as stalking, armed robbery, and home invasion. Yet they are all
treated the same in terms of consequences long after sentence completion. No one would
argue against banning those convicted of identity theft or fraud from working in a bank, but
there are many other kinds of employment opportunities for which they may be suited and
should be permitted to pursue.
This report documents the efforts in many states to revaluate some of these consequences,
while making clear that many of the recently enacted reforms are easily undermined, worked
around, or ignored. Even more frequently, the fixes are relatively insignificant or apply to such
small group that they don’t begin to address the problem.
Collateral consequences are, of course, just one piece of the problem. The existing system
of proliferating criminal penalties and attendant collateral consequences not only remains in
place, it continues to grow—for example, with hundreds of new federal offenses created over
the last several years. Too often we criminalize behavior that decades ago would not have been.
We add on specific category or penalty enhancements for everything from where a crime was
committed to the status of the victim or intended victim. Intent is equated with commission.
Too many of our criminal laws are written to respond to behavior that should be dealt with (and
would more effectively be dealt with) outside the criminal justice system. And evidence on the
impact of public safety is mixed or limited at best.
Other laws are written in ways that do not distinguish between truly harmful acts and those that
only approximate those acts as exemplified by the overly broad definition of “violent”, ensnaring people who may only possess a weapon in commission of an offense, even when it was not
used, or never intended to be used. And finally, too often we respond to many members of our
communities who are primarily sick, poor, homeless, or unable to care for themselves or their
families with the hammer of the criminal justice system. And then we continue to hammer them
long after they have satisfied our need for retribution.
Peggy McGarry
Director, Center on Sentencing and Corrections
2
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
049
Contents
4Introduction
4
About this report
6Background
11 New approaches to collateral consequences
13 Expungement and sealing remedies
18 Certificates of recovery
20 Offense downgrades
21 Building relief into the criminal justice process
23Ameliorating employment-related
collateral consequences
29 Addressing discrete collateral consequences
30 Limitations of reform
36Recommendations
43Conclusion
44Appendices
050
VERA INSTITUTE OF JUSTICE
3
About this report
From 2009 through 2014, forty-one states and the District of Columbia enacted 155 pieces of legislation to mitigate the burden of collateral consequences for
people with certain criminal convictions. In reviewing this legislative activity,
the Vera Institute of Justice’s Center on Sentencing and Corrections found that
states have pursed one or a combination of seven broad approaches to reform.
They created or expanded expungement and sealing remedies; issued certificates of recovery; allowed for defense downgrades; built relief into the criminal
justice process; ameliorated employment-related collateral consequences; improved access to information; and addressed discrete collateral consequences.
By providing (1) concise summaries of representative legislation in each area, (2)
an analysis of the their limitations, and (3) recommendations for making future
efforts sustainable and comprehensive, this report aims to be a practical guide
for states and localities looking to enact similar reforms.
Introduction
Most people believe conviction and sentencing are the culmination of the
criminal justice process. When convicted of a criminal offense, an individual
will be made to pay their debt to society through a court-ordered sentence,
whether by paying a fine, complying with a community service order or conditions of probation, or serving a custodial sentence either in jail or prison. However, unbeknownst to most—including those convicted—a court-sanctioned
sentence does not define the whole punishment that convicted individuals
must submit to in practice.1 Due to a vast array of post-sentence civil penalties,
disqualifications, or disabilities that flow from state or federal convictions—
termed “collateral consequences of criminal convictions” or simply “collateral
consequences”—punishment does not necessarily end with the expiration of a
prison, jail, or community sentence. It can continue well beyond sentence completion, sometimes with lifetime impact, and often has adverse effects that can
be transmitted to the individual’s family and community.2
Consider a low-income person with a felony drug conviction in New York as
a case in point.3 That person will be presumptively ineligible for public housing,
with obvious impacts on his or her family and household, for two to six years
after sentence completion depending on the offense and type of conviction.4
That same person—possibly with limited education and access to career opportunities—will also be barred from employment or licensing in a wide variety of
occupations—including, dockworker, real estate agent, and even bingo operator—and could be disqualified from receiving much-needed educational assistance.5 New York is one of a number of states that have opted out of a federal
rule banning drug felons from receiving federal cash assistance or food stamps
for life.6 Thus, unlike drug felons in other states—whose families can receive
only a reduced amount of assistance or who face a temporary or conditional
4
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
051
ban on receiving any assistance—this person’s family will at least be able to
provide for some basic needs. However, the many adverse housing and employment consequences of conviction put into real question where this person will
live and how this person will be able to support his or her family.
Despite the profound impact collateral consequences can have on individuals
and families, these consequences—legally considered civil penalties—remain
formally excluded from the criminal justice process, with no mechanism to address them.7 For example, a formal discussion of collateral consequences does not
typically occur during plea negotiation because as “indirect” ramifications of a
guilty plea, neither the trial judge nor defense counsel is affirmatively required to
inform defendants of the collateral consequences attached to a particular offense.
As a result, they are largely invisible to convicted individuals and criminal justice
practitioners alike.8 Since collateral consequences are scattered throughout different statutes, cut across distinctive areas of law, and operate through diverse actors across several systems, it can be challenging for criminal attorneys, prosecu-
ARREST RECORDS
Arrests—including those that do not result in a conviction or a formal charge—can still trigger devastating collateral consequences. Records of an arrest that result in a not-guilty adjudication, dismissal, or no charge often remain in publically
accessible criminal record databases.a Additionally, commercial “data harvesters” collect records immediately or shortly
after an arrest is made, undermining state efforts to make inaccessible arrest records that did not result in a conviction.b
Moreover, these arrest records often do not include information on how the case was ultimately adjudicated—that is,
whether a case was ultimately dismissed, or that the individual was never charged.c Arrest records are used in employment, housing, credit, and other important decisions with very damaging consequences.d African Americans, with much
higher arrest rates, are particularly affected by the collateral consequences of an arrest record.e
In October 2014, the New York Times presented the story of Anthony Welfare, whose case exemplifies the consequences
that may arise from an arrest. f Welfare was arrested after a pipe containing marijuana residue was found in the console of
the car in which he was a passenger. Welfare, who had no knowledge of the paraphernalia in the car, was not a marijuana
user, and had no prior criminal record, was issued a desk appearance ticket and charged with a misdemeanor. Welfare
worked for seven years as a school bus driver, but upon being notified of the arrest, his employer fired him. He was told he
could be reinstated after he proved his innocence. Welfare waited two months for his first court date, losing nearly $7,000
in wages, and was granted a dismissal after an additional 90 days of staying out of trouble—resulting in an additional 90
days out of work. In a follow-up in November, the Times reported that while Welfare’s charges have since been dismissed,
he has still not been reinstated at his former job.g
a
For information regarding the collateral effects of arrest records, see
Shawn D. Stuckey, “Collateral Effects of Arrests in Minnesota,” University
of St. Thomas Law Journal 5, no. 1 (2008): 335; H. Lane Dennard, Jr. and
Patrick C. DiCarlo, Collateral Consequences of Arrests and Convictions: Policy and Law in Georgia (Macon, GA: Mercer Law School, 2009); and Gary
Fields and John R. Emshwiller, “As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime,” Wall Street Journal, August 18, 2014.
b
Stuckey, 2008, pp. 343-344.
c
For example, the Georgia Crime Information Center, which is responsible for a statewide centralized database of criminal history records, has
reported that 25 percent of felony arrest records reported during a five-year
period did not also report corresponding final dispositions. See H. Lane
Dennard, Jr. and Patrick C. DiCarlo, Collateral Consequences of Arrests and
Convictions: Policy and Law in Georgia (Macon, GA: Mercer Law School,
2009), 16. The report also notes the significant time lapse—152 days on
average—between when a disposition decision is rendered and when the
database is updated to reflect the disposition. The national average is
reported to be 50.2 days.
d
Gary Fields and John R. Emshwiller, “As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime,” Wall Street Journal, August 18, 2014.
e
Stuckey, (2008), pp. 338-340.
f
Jim Dwyer, “Despite Blasio’s Promise, Marijuana Arrests Persist in New
York,” The New York Times, October 21, 2014.
g
Jim Dwyer, “Shift on Marijuana Policy Was a Long Time Coming, and Too
Late for One Man,” The New York Times, November 13, 2014
052
VERA INSTITUTE OF JUSTICE
5
tors, or judges to know and understand how and when they apply, or be familiar
with how other actors in different systems will employ them.9 Accordingly, many
criminal justice actors remain unfamiliar with the full gamut of collateral consequences triggered by a specific offense.10 Apart from immigration consequences,
neither the trial judge, nor the prosecutor, nor the defense attorney is required to
be aware that any exist.11 Thus, in many cases, individuals complete their sentences and then find themselves burdened with unanticipated, long-lasting, and
onerous post-punishment restrictions and penalties that can affect nearly every
aspect of their lives and from which they may have little prospect of relief.
In recent years, however, the veil of invisibility has slowly lifted.12 With rising
awareness of the increasing number of people under correctional supervision
and, therefore, an ever-increasing number reentering society, state policymakers, legal practitioners, advocates and the American public have become more
concerned about the issue of offender reentry and more supportive of rehabilitative and reentry services, particularly those which prevent recidivism.13 This
concern has brought into sharp focus the impact of collateral consequences on
the employment, education, health, and housing outcomes for people already
disadvantaged in these areas , along with the harmful public safety repercussions
that these can engender.14 Reflecting this concern, Attorney General Eric Holder,
for example, directed the U.S. Department of Justice in 2011 to consider whether
any proposed rule, regulation, or guidance may present unnecessary barriers
to successful reentry. In a speech in February 2014, Holder specifically called on
states to mitigate or eliminate “unwise collateral consequences” that prevent
individuals with past convictions from fully reintegrating into society.15 Holder
has also made a strong case against felon disenfranchisement laws, in particular,
by characterizing them as “unnecessary,” “unjust,” and “counterproductive,” and
which “perpetuat[e] the stigma and isolation imposed on formerly incarcerated
individuals, [and] increase the likelihood they will commit future crimes.”16
As jurisdictions direct attention to the significant barriers that collateral consequences impose on successful reentry, they have enacted measures that allow
certain individuals to move beyond their convictions in order to help increase their
chances for successful lives in the community. This report summarizes the approaches states have taken since 2009. It also discusses the limitations of these approaches and offers recommendations to jurisdictions considering similar efforts.
Background
As the 1970’s ended, with crime rates on the rise, the American public became
more concerned about public disorder and public safety, and as a result politicians of all stripes responded by jettisoning the rehabilitative principals that
had, until then, characterized much of the criminal justice system’s approach
towards law-breakers.17 Narrowing the system’s focus to retribution and deterrence, policymakers adopted harsher policies, including the dramatic expansion
of the penal code, in which state legislatures and Congress expanded existing
6
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
053
VOTING RIGHTS
Disenfranchisement—revocation of the right to vote—for criminal offenders in the United States dates back more than two
hundred years.a Premised on a principle that individuals who violate social norms by committing criminal offenses are not fit
to participate in the democratic political process, disenfranchisement is a tool used to marginalize law-breakers in America.b
Disenfranchisement of convicted individuals as practiced in the United States is quite rare among democracies elsewhere
in the world.c Besides running afoul of Article 25 of the International Covenant on Civil and Political Rights, disenfranchisement laws have been struck down in countries such as South Africa, Austria, the United Kingdom, and Canada.d
One particularly troubling aspect of this marginalization in the United States is its disparate racial impact.e In the late
nineteenth century, disenfranchisement was broadened and focused on crimes disproportionately committed by African
Americans, in an attempt to bypass the new voting rights granted by the Fifteenth Amendment.f Today, one out of every 13
African Americans (7.7 percent) is disenfranchised, compared to 1.8 percent of non-African Americans. At least 20 percent
of African Americans have lost the right to vote in three separate states (Florida, Kentucky, Virginia).g
Today, disenfranchisement laws differ significantly state to state. Three states permanently disenfranchise all people with
a felony conviction; seven states permanently disenfranchise some felony offenders; 21 states reinstate voting rights upon
sentence completion; four states disenfranchise those in prison or on parole, but allow those on probation to vote; thirteen
states disenfranchise those in prison but allow individuals or probation or parole to vote; and finally, just two states—Maine
and Vermont—grant everyone the right to vote, even those who are incarcerated, or on community supervision.h
Although, the rate of voting rights loss has increased approximately 400 percent since 1980, in recent years, there has been
a relaxation of voting bans in part due to research that suggests that the engagement of individuals with a criminal record
in the political process leads to a decrease in subsequent criminal activity.i At least 23 states have expanded voter eligibility
since 1997.j Most recently, Delaware HB 10 (2013) eliminated the five-year waiting period after sentence completion before voting rights restoration for most offenders. New York SB 3553 (2014) provided for absentee voting for incarcerated
non-felons. Virginia issued a directive to automatically restore voting rights to nonviolent felons after sentence completion.k In 2010, South Dakota restored some voting rights as a result of a settlement in a court case brought by the ACLU.l
See The Sentencing Project, Felony Disenfranchisement: A Primer (Washington, DC: The Sentencing Project, 2013), 2-3.
b
For an overview of the premises that undergird arguments for felony disenfranchisement, see Roger Clegg, George T. Conway III, and Kenneth K.
Lee, “The Case Against Felon Voting,” University of St. Thomas Journal of
Law & Public Policy 2, No.1 (2008): 17-19. Also see Matthew E. Feinberg,
Esq., “Suffering Without Suffrage: Why Felon Disenfranchisement Constitutes Vote Denial Under Section Two for the Voting Rights Act,” Hastings
Race and Poverty Law Journal 8 no. 61 (2011); 65-66. For a discussion of
the marginalizing effects of criminal disenfranchisement, see Ann Cammett,
“Shadow Citizens: Felony Disenfranchisement and the Criminalization of
Debt,” Penn State Law Review 117, no. 349 (2012): 370-72.
c
See ACLU et al., Democracy Imprisoned: A Review of the Prevalence and
Impact of Felony Disenfranchisement Laws in the United States (Shadow Report Submitted to the United Nations Human Rights Committee, 2013) 3-4,
http://sentencingproject.org/doc/publications/fd_ICCPR%20Felony%20Disenfranchisement%20Shadow%20Report.pdf
d
UN General Assembly, International Covenant on Civil and Political Rights,
16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available
at: http://www.refworld.org/docid/3ae6b3aa0.html. See note c for more information on other nations’ rejections of criminal disenfranchisement laws.
e
See United States Constitution, Amendment 15, Section 1 (“The right of
citizens of the United States to vote shall not be denied or abridged by
the United States or by any state on account of race, color, or previous
condition of servitude”). For a comprehensive overview of the historical
and present disparate impact of felony disenfranchisement laws, see Daniel
a
S. Goldman, “The Modern-Day Literacy Test?: Felon Disenfranchisement
and Race Discrimination,” Stanford Law Review 57, no. 611 (2004); 625-40.
f
Ibid., p. 625-27.
g
See note c, at p. 2.
h
ACLU, “Map of State Criminal Disenfranchisement Laws,” available at
https://www.aclu.org/maps/map-state-criminal-disfranchisement-laws
i
For information regarding the change in the disenfranchisement rate,
see Christopher Uggen, Sarah Shannon, and Jeff Manza, State-Level Estimates of Felon Disenfranchisement in the United States, 2010 (Washington,
DC: The Sentencing Project, 2012), 9. For information regarding research
on criminal activity and engagement in the political process, see Reuven
Ziegler, “Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives,” Boston University International Law
Journal 29 (2011): 208.
j
For a list of states that have expanded voter eligibility and descriptions
of these reforms, see Nicole D. Porter, Expanding the Vote: State Felony
Disenfranchisement Reform, 1997-2010 (Washington, DC: The Sentencing
Project, 2010).
k
See Letter from Governor Robert F. McDonnell to Secretary of
the Commonwealth Janet V. Kelly, May 29, 2013, available at
https://commonwealth.virginia.gov/media/2107/20130529124204967.pdf.
l
See Settlement Agreement, Janis v. Nelson, Civ. 09-5019 (D.S.D. 2010) available at:
https://www.aclu.org/files/assets/2010-5-25-JanisvNelson-SettlementAgmt.pdf.
See also Nicole D. Porter, Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2010 (Washington, DC: The Sentencing Project,
2010), 23.
054
VERA INSTITUTE OF JUSTICE
7
criminal statutes or churned out new ones; the adoption of zero-tolerance
policing tactics—focusing on the zealous enforcement of minor street-level
drug and quality-of-life offenses—and the roll out of stiffer penalties, exemplified by the proliferation of new statutes aimed at keeping people sentenced to
prison in there for longer periods of time (e.g., mandatory minimum sentences,
truth-in-sentencing statutes, and habitual offender laws).18 With more conduct
subject to criminal regulation, coupled with increased enforcement measures,
ever-more people found themselves ensnared in the criminal justice system.
In 2012, an estimated 70.3 million adults in the U.S. had a criminal record. The
number of individuals under correctional supervision rose from 2,869,836 in
1985 to nearly 7 million people in 2012, 2.2 million of whom were incarcerated in
jail or prison .19 A recent study indicates that approximately one in three adults
have been arrested by age 23; and the Federal Bureau of Investigation estimates
that law enforcement has made more than one-quarter billion arrests in the
past twenty years.20
During this same time, policymakers also sought to widen the system’s
punitive reach beyond the boundaries of formal criminal sanctions.21 Coinciding with the growing severity of criminal penalties was the expansion, both
in number and scope, of a vast network of post-punishment penalties and
restrictions (or “collateral consequences”) aimed at excluding individuals with
criminal histories from many aspects of mainstream life.22 While many of these
consequences were rationalized as steps to protect the public, they also aimed
to attach further opprobrium by enacting a system that would continue to
stigmatize and marginalize individuals—with a criminal record well beyond
their sentences.23 What has resulted is a system to delineate a person’s status as
either a law-abiding member of the community at large or as one of those who
must forever sit outside it.24
THE SCOPE OF COLLATERAL CONSEQUENCES
The collateral consequences enacted over recent decades are wide-reaching,
long-lasting, and encompass two distinct types of sanctions: legal penalties that
are imposed automatically by operation of law upon conviction and disqualifications that an administrative agency, civil court, or official are authorized but not
required to impose on a convicted person.25 These include temporary or permanent loss of certain civil rights (such as the right to vote, serve on a jury, or hold
public office); temporary or permanent ineligibility for social benefits, such as
public housing, food stamps, or rights to pensions, disability, veteran’s benefits or
federally-funded student aid; employment or occupational licensing restrictions;
restrictions on certain aspects of family life (such as the ability to adopt or retain
custody of one’s own children); and for non-citizens, deportation.26
All of this does not account for the many difficult-to-regulate informal disqualifications imposed by private actors (i.e., landlords, employers, university
admission officers) which stem not from the express operation of the law, but
from the social stigma suffered by individuals with a criminal record.27 Indeed,
8
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
055
a criminal record—even a mere arrest record— can cast a long shadow on
individuals and their families and still serve as a de facto basis for job, credit, or
housing denial even absent formal disqualification —a situation made particularly worse by the fact that public access to criminal records are now more
readily available in the internet era.28
RESPONDING TO THE PRISONER REENTRY CRISIS
With services like in-custody therapeutic, vocational, and educational programs
removed from corrections budgets and community supervision more focused
on surveillance than rehabilitation, few of the more than 637,000 men and
women released from state and federal prisons, the nearly 2.6 million released
from community supervision, and the more than 11 million released from jail in
2012 were left with any assistance to deal with the problems that got them involved in the criminal justice system in the first place—such as mental illness,
substance abuse, or lack of vocational skills or education.29 These issues, when
left unaddressed, increase the risk of recidivism, and many of these people are
returning to communities lacking the resources or services necessary to cope
with these pressing needs.30 Indeed, these communities are often poor, urban,
minority neighborhoods marked by endemic poverty and unemployment, family dislocation, high residential turnover, and a breakdown of community social
processes and controls.31
In response to stubbornly high recidivism rates and with a growing acknowledgment that certain collateral consequences (particularly those impacting
employment, housing, and health) prevent people with criminal records from
appropriately addressing proven risk factors for reoffending, government agencies and community-based service providers are directing more resources and
efforts towards assisting individuals and their families in navigating the reentry process.32 Public defender organizations are adopting integrated criminal
and civil defense strategies designed, in the words of the Bronx Defender’s Civil
Practice mission statement to “minimize the severe and often unforeseen fallout
from criminal proceedings and [to] facilitate the reentry of [clients] into the
community.”33 Corrections departments, too, are making changes—implementing
programs and practices that tie programming to post-release risks and needs, including services that help prisoners nearing release to connect with much-needed housing, treatment, or other services and resources in the community.34
Policymakers are also addressing the impact and scope of post-punishment
penalties. For one, to better understand their reach, educate defendants and
system actors, and identify ways to narrow their range, many states and the
American Bar Association have begun to inventory the vast array of collateral
consequences at the federal, state, and local level.35 There are approximately
45,000 laws and rules that restrict the opportunities and benefits available to
individuals with criminal histories.36 As these sanctions and disabilities have
come to light, in part through this process, states are passing legislation aimed
at easing their burden for individuals, their families, and communities.
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VERA INSTITUTE OF JUSTICE
9
CLEMENCY
Though a person’s conviction and sentence are final, the president, a state governor, or a special state board can
grant clemency to ameliorate the harsh effects of a criminal conviction.a There are two forms of clemency—pardon
and commutation—which operate in distinct ways. A commutation is a reduction in the length of a sentence and is
used to correct an overly harsh sentencing decision. A pardon, on the other hand, relieves the offender of the collateral consequences of a conviction and may, in some states, forgive the conviction altogether. b
In the federal system, presidential pardon power is granted by the Constitution, and presidents are free to determine
the parameters of how to exercise it. According to rules set by the current Office of the Pardon Attorney at the U.S.
Department of Justice, the president may issue a commutation to shorten a person’s sentence at any time after conviction.c President Obama has recently announced his intention to commute the sentences of hundreds of nonviolent
drug offenders who were sentenced under federal mandatory minimums. The current policies of the Obama administration dictate that a pardon can only be granted five years after sentence completion. A federal pardon relieves
collateral consequences but does not erase or expunge the conviction.
On the state level, governors or pardon boards may grant clemency to persons convicted under the laws of their respective states.d State offenders may also have their sentences reduced or their convictions nullified. State rules and
definitions vary from the federal system and from one another.
On the federal and state levels, grants of clemency have declined dramatically in recent decades.e Originally intended as
an important check on injustice and a safety valve for individuals subjected to unduly harsh sentences, today the pardon
power has largely fallen victim to political expediency.f
Some states, however, are issuing an increasing number of pardons and commutations. Illinois’ former Governor Pat
Quinn granted more than 1,100 clemency petitions since taking office, and outgoing Texas Governor Rick Perry has
granted hundreds of commutations and pardons.
In the last five years, four states have passed laws strengthening the pardon relief available to convicted individuals.
Colorado SB 123 (2013) clarifies that a pardon from the governor waives all collateral consequences of the conviction.
Utah HB 33 (2013) expands the impact of a pardon so that it exempts the person from punishment as well as restores
any rights or privileges that were forfeited due to the criminal conviction. Louisiana HB 8 (2014) reduces the length of
time that certain applicants who have been denied pardon are required to wait before filing a subsequent application
with the Board of Pardons. Washington HB 1793 (2011) provides that the criminal records of juveniles who have been
pardoned shall be sealed and the proceedings will be treated as having never occurred.
a
Clemency is justified on the grounds that it is important for merciful or humanitarian grounds, that is can ensure justice in instances where the system
cannot ensure a just result (such as cases of doubts of guilt), or when it is seen as serving public welfare aims. See Molly Clayton, “Forgiving the Unforgivable: Reinvigorating the Use of Executive Clemency in Capital Cases,” 54 B.C. L. Rev. 751, 756-759 (2013).
b
For example, in Minnesota, the Board of Pardons can grant a “pardon extraordinary,” which nullifies the conviction and cleanses the associated criminal
record. See M.S.A. § 638.02 (2).
c
Code of Federal Regulations, Title 21, Chapter 1, Part 1, Section 1.3. President Clinton exercised these powers differently and pardoned wealthy fugitives Marc Rich and Pincus Green after their indictments but before their trials began.
d
Nine states have Boards of Pardons and Paroles that exclusively grant all pardons and commutations.
e
Margaret Colgate Love, “The Twilight of the Pardon Power,” Journal of Criminal Law & Criminology 100, no. 3 (2010): 1170-1, 1193-1204.
f
For a discus­sion on the pardon power’s original functions and how the pardon power has fallen victim to political pressure, see Paul Rosenzweig, “Reflections on the Atrophying of the Pardon Power,” The Journal of Criminal Law and Criminology 102(3): 595-602, 607-8 (2012).
10
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
057
New approaches to collateral
consequences
All told, 41 states and the District of Columbia enacted 155 pieces of legislation between
2009 and 2014 to mitigate the burden of collateral consequences for individuals with
certain criminal convictions. (Comprehensive listings of the state-level legislation passed
since 2009 can be found in the appendices.) States have pursued seven broad approaches
to achieve this goal. They have:
>>Created or expanded expungement and sealing remedies. To shield eligible
individuals from the adverse impact of a criminal conviction record, many states
created new or expanded existing remedies aimed at sealing or expunging criminal records.
>>Issued certificates of recovery. To assist qualified individuals in moving beyond
their criminal records, some states issue certificates of recovery to people who have
met certain rehabilitative standards. These certificates are meant to help third
parties, such as employers and landlords, make better-informed decisions about
individuals with criminal records.
>>Allowed for offense downgrades. States have also adopted laws that offer an
offense downgrade (for example, from a felony to a misdemeanor conviction) to
eligible individuals who comply with conditions of supervision. These laws ensure
that compliant individuals avoid certain collateral consequences that attach to
felony convictions.
>>Built relief into the criminal justice process. To minimize certain individuals’
contact with the criminal justice system, some states sought to build a relief mechanism—such as deferred prosecution or adjudication programs—into the front end
of the criminal justice system instead of trying to control collateral consequences
later in the process.
>>Ameliorated employment-related collateral consequences. Many states enacted
laws to ease specific collateral consequences pertaining to employment, by, for
example, instituting “ban the box” policies—which prohibit inquiries into a
prospective employee’s criminal history upon initial application—or removing
licensing restrictions.
>>Improved access to information. States also enacted laws that aim to provide
convicted individuals—many of whom remain ignorant of both the impacts of
their criminal record and relief for which they may be eligible—better access to
pertinent information related to collateral consequences. Some of these laws also
sought to better regulate how third parties use criminal history information by
requiring them to institute more transparent policies and procedures in order to
increase procedural fairness.
>>Mitigated specific collateral consequences. Many states passed laws that address
specific collateral consequences, such as restrictions on housing or public benefits, or
those that related to certain family matters, such as adoption or child support.
058
VERA INSTITUTE OF JUSTICE
11
12
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
059
California
Colorado
Idaho
Alabama
Arkansas
California
Colorado
Delaware
District of
Columbia
Georgia
Hawaii
Illinois
Indiana
Indiana
New York
Offense
Downgrades
Iowa
Louisiana
Maryland
Massachussetts
Minnesota
Mississippi
Missouri
Nevada
New Hampshire
New Jersey
New York
North Carolina
Ohio
Oklahoma
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Washington
Wyoming
Expungement or
Sealing Remedies
Illinois
Indiana
Louisiana
Maryland
Massachussetts
Minnesota
Nebraska
New Hampshire
Arkansas
California
Colorado
District of Columbia
Florida
Georgia
Hawaii
Illinois
Indiana
Louisiana
Massachussetts
Minnesota
Missouri
Nevada
New Hampshire
New Jersey
Access to Information
California
Colorado
Connecticut
Delaware
District of
Columbia
Florida
Georgia
New York
Ohio
South Carolina
Texas
Utah
Vermont
Washington
Wyoming
New Jersey
New Mexico
New York
North Carolina
Ohio
Rhode Island
Tennessee
Texas
Ameliorating
Employment-Related
Collateral Consequences
Arkansas
Connecticut
District of
Columbia
Georgia
Illinois
Arkansas
California
Colorado
Delaware
Georgia
Illinois
Indiana
Louisiana
Missouri
Nevada
Louisiana
Michigan
Minnesota
Missouri
New Jersey
New York
Oregon
Rhode Island
Building Relief
into the Criminal
Justice Process
New Hampshire
New Jersey
New York
North Carolina
Ohio
South Dakota
Utah
Washington
West Virginia
Discrete Collateral
Consequences
Alabama
Arkansas
California
Colorado
Delaware
Georgia
Illinois
Kentuky
North Carolina
Ohio
Rhode island
Tennessee
Vermont
Certificates
of Recovery
MAPPING RELIEF: COLLATERAL CONSEQUENCES REFORM, 2009-2014
EXPUNGEMENT AND SEALING REMEDIES
Recent advances in information technology—together with the growth in the
number of criminal records databases at the federal, state, and local levels—has
made it increasingly easy to find a person’s criminal history online.37 Moreover, the pervasiveness of criminal background checks mean that past criminal history, including youthful indiscretions, can have negative consequences
throughout a person’s life.38 Indeed, with thousands of state and federal laws
mandating FBI background checks for a broad spectrum of occupations, many
individuals with a criminal history can be excluded from a number of professions simply because they possess a conviction record. In 2012, approximately 17
million background checks using the FBI database were conducted for employment or licensing purposes.39
Cleansing a criminal record can be a useful tool to shield individuals from the
continuing negative effects of a conviction. Typically, the criminal record is destroyed or made inaccessible to the public. From 2009 to 2014, at least 31 states
and the District of Columbia have taken steps to broaden the scope and impact
of expungement and sealing remedies. These states have primarily focused on
(1) extending eligibility for expungement or sealing mechanisms to additional classes of offenses or offenders; (2) reducing the requisite waiting periods
before an offender may apply for expungement or sealing , as well as making
sealing or expungement automatic or presumptive following successful completion of sentence or other programs; (3) clarifying the effect of expungement
or sealing; (4) providing remedies for sealing or expunging juvenile records; and
(5) making it easier for individuals to prevail on an expungement request by
altering the burden of proof.
Extending eligibility for expungement and sealing
At least 23 states and the District of Columbia have enacted 37 laws that increase the scope of expungement and sealing remedies. Some accomplished
this by extending these remedies to those with prior convictions (as distinct
from first-time offenders) or who received certain types of sentences. Other
states kept their expungement and sealing remedies available only to those
with limited criminal histories, but changed the way “limited criminal history”
is calculated. Additionally, some states extended expungement and sealing
remedies of arrest or trial records to individuals whose charges were dropped,
who were found innocent, or who otherwise avoided conviction.40 In some
states, mechanisms were added which made expungement or sealing remedies
automatically or presumptively available. Five of those states are:
>>Mississippi HB 160 (2010) expands expungement eligibility to certain firsttime felony offenders, such as those convicted of drug possession, shoplifting, writing bad checks, and certain larceny, false pretenses, and malicious
mischief offenses. After a waiting period of five years, a judge has discretion to grant a petition for expungement based on whether the individual
is rehabilitated. If granted, the conviction is removed from all public records.
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VERA INSTITUTE OF JUSTICE
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Previously, expungement was only available for first-time misdemeanor
offenders.
>>California AB 1384 (2011) expands eligibility for expungement to those
convicted of a misdemeanor and sentenced to incarceration. These individuals are now treated the same as those sentenced to probation for a
misdemeanor conviction and are immediately eligible for expungement at
the court’s discretion. Previously, individuals incarcerated for misdemeanor
convictions could seek expungement only after completing their sentence
and remaining crime-free for one year.
>>Wyoming SF 88 (2011) expands eligibility for expungement to those convicted of certain first-time nonviolent felonies. Previously, expungement
was available only for certain first-time misdemeanor convictions.
>>Ohio SB 337 (2012) expands eligibility for record sealing to those with certain prior convictions. Previously, only first-time offenders could petition to
have their records sealed. Now, individuals with the following types of prior
convictions may petition for record sealing: (1) one felony conviction, (2) two
misdemeanor convictions if they are not for the same offense, or (3) one
felony conviction and one misdemeanor conviction. Convictions for offenses involving child victims remain ineligible, except those for failure to pay
child support.
>>Illinois HB 3061 (2013) expands eligibility for record sealing to 10 additional
Class 3 and 4 felonies. Previously, the only felony offenses eligible for record
sealing were Class 4 felony drug possession and Class 4 felony prostitution.
In deciding whether to seal records, judges may consider specific collateral
consequences the individual is facing, the person’s age and employment
history, and the strength of the evidence supporting the conviction.
Reducing waiting periods
States typically institute a waiting period following the completion of the
individual’s sentence (including any time spent on probation or parole) before
an individual may apply to seal or expunge his or her criminal record. The
rationale for the waiting period is to allow those with a criminal conviction to
demonstrate that it was an aberration in an otherwise law-abiding life. When
individuals remain crime-free during the specified period, they are then rewarded with the opportunity to seal or expunge their criminal records. If not
crime-free, sealing or expungement remedies will be unavailable, as a matter of
public safety.
Many states have recognized that overly long waiting periods place a burden
on those simply trying to move on with their lives.41 From 2009-2014, eight
states and the District of Columbia enacted at least 11 laws that eliminated, lowered, or changed the calculation for the waiting period before certain offenders
are eligible for expungement or sealing, including:
14
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
061
>>Delaware HB 169 (2010) eliminates the waiting period before certain firsttime offenders are eligible to obtain expungement of arrest and conviction records. The waiting period was previously five years for those who
completed a deferred judgment program, and two years for those who
completed a drug court diversion program. Now, individuals who complete
either of these programs are eligible for expungement immediately upon
completion.
>>Colorado HB 1167 (2011) reduces the waiting period for infractions, misdemeanors, and low-level felonies involving drug use or possession from
10 years from the conviction date or completion of sentence, whichever
occurred later, to three to seven years. Additionally, the law places increasing limits on the influence of district attorneys in the expungement process
as the seriousness of the offense drops. For example, petty offenses must be
expunged with no notice given to the district attorney; for low-level felonies, district attorneys must be given notice and the opportunity to object.
>>Indiana HB 1155 (2014) changes the way that waiting periods for most
felonies are calculated. Previously, the waiting period began at completion
of sentence, and was eight years for nonviolent felonies and 10 years for
felonies involving bodily injury. Now, the waiting period is eight or 10 years
from the date of conviction or three or five years from completion of sentence, respectively, whichever occurs later. For example, under the previous
law an individual convicted of a violent injury and sentenced to 10 years
of incarceration would complete his or her waiting period ten years after
release, which is 20 years from the date of conviction. Under the new law,
this individual’s waiting period would instead finish five years after release
from incarceration, which is 15 years from conviction.
Clarifying the effect of expungement and sealing
Even when a state has an expungement or sealing remedy in place, its legal
effect can remain unclear or ambiguous to individuals with criminal histories.
For example, individuals may be unaware of a right to deny the existence of
a sealed or expunged record on a job application; others who are aware of the
right may not exercise it out of fear of discriminatory treatment by employers
who may later learn of their sealed or expunged criminal record.42
From 2009 to 2014, eight states enacted at least 13 laws to clarify and make
explicit the effects that sealing or expunging a criminal record has, particularly
with regard to specific collateral consequences and available relief mechanisms.
Some of these laws resolve ambiguity about the status of arrest and trial
records after a conviction or acquittal record is sealed or expunged. Others
specify that a person whose records are sealed or expunged may state without
committing perjury that the records do not exist and the activity in the records
never occurred. Still other laws clarify the restoration of certain civil rights
that accompany the sealing or expungement of records, while others impose
liability for unlawful discrimination on those who make adverse employment
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VERA INSTITUTE OF JUSTICE
15
or licensing decisions on the basis of sealed or expunged criminal records. Three
of those states are:
>>South Dakota HB 1105 (2010) clarifies an already existing expungement
remedy for individuals who were arrested, but not found guilty. If the
petition to expunge is granted, all official records shall be sealed, including
those related to arrest, detention, indictment, trial, and disposition. Following expungement, individuals do not have to acknowledge or provide
information contained in the records for any reason.
>>California AB 2371 (2012) clarifies that a dismissal in a specialized veterans court program releases the defendant of the penalties and disabilities
which usually result from the underlying offense. For example, a person
whose records are sealed as a result of involvement in a veterans court
program may indicate that the records do not exist and is not required to
acknowledge the proceeding, even under oath, except on an application for
a law enforcement position.
>>Indiana HB 1482 (2013) makes it unlawful to expel, suspend, or refuse to employ or grant a license on the basis of an expunged conviction or arrest record.
The law specifies that an employer may only ask if an applicant has any convictions or arrests that have not been expunged. Finally, the new law makes
clear that a person’s civil rights are restored after expungement, including the
rights to vote, hold public office, serve as a juror, and own a firearm.
Expanding access to expungement and sealing
of juvenile records
Prompted by research indicating that juvenile brain chemistry is distinct
from that of adults, criminal justice actors and policymakers are beginning to
acknowledge that juveniles may be less culpable than adults and that it may
be inappropriate for long-lasting collateral consequences to attach to crimes
committed by juveniles.43 Accordingly, states are introducing procedures to
seal or expunge juvenile convictions, often making these remedies available to
individuals well into adulthood.
All told, 11 states have enacted at least 14 laws that increase access or eliminate barriers to expungement or sealing of juvenile records, including:
>>North Carolina SB 397 (2011) introduces expungement of juvenile records
for nonviolent felonies committed by first-time offenders under age 18. The
ex-offender must wait four years, have no other felony or misdemeanor
convictions (except for traffic violations), perform a minimum of 100 hours
of community service and complete high school or earn a GED. The petition
for expungement must also include affidavits of good moral character. If
the court grants the expungement petition, the individual is not required
to acknowledge the criminal records on any application, except for certain
state certifications.44
>>Maryland HB 708 (2012) expands eligibility for mandatory expungement
16
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
063
of juvenile records. Previously, the court was required to grant only those
petitions that were handled exclusively in the juvenile court. Now, records
of cases that were handled in adult court but transferred to juvenile court
for sentencing are also eligible for mandatory expungement upon petition.
>>Ohio SB 337 (2012) provides that juvenile records for sexual battery and
gross sexual imposition may be expunged. Ineligible offenses are now
limited to aggravated murder, murder, and rape. The law also specifies that
a fee is no longer required to file a juvenile expungement petition, and
reduces the waiting period from two years to six months. Additionally, SB
337 now excludes most juvenile records from criminal records background
checks. Exceptions are records involving aggravated murder, murder, or a
serious sex offense requiring registration
Altering the burden of proof
When a state allows for expungement or sealing of certain criminal records, an
individual is generally required to file a petition in court requesting expungement or sealing. The petition must typically demonstrate that any applicable
requirements have been met, including a requisite degree of rehabilitation. For
example, an ex-offender may be required to establish that he or she is leading
a law-abiding life, has no subsequent arrests or convictions, is not abusing any
substances, and is gainfully employed. However, given the vast array of employment-related collateral consequences, for example, simply possessing a criminal record may prevent many individuals from achieving certain milestones
necessary to succeed in their petition.
To counteract this, at least three states have altered the burden of proof
required to seal or expunge criminal records, either by lowering the burden of
proof or reversing it altogether. For instance, instead of requiring individuals to
show that they are fit for expungement or sealing, states are passing laws that
make expungement or sealing automatic unless the prosecutor shows that an
offender is not fit for expungement or sealing. Alternatively, states are lowering
the level of proof required from “clear and convincing evidence” to “a balance
of probabilities” to demonstrate fitness for sealing or expungement.45 Two of
those states are:
>>Arkansas HB 1608 (2011) introduces presumptive expunction of misdemeanor offenses for eligible individuals. The law calls for all misdemeanor
expungement petitions to be approved unless the court is presented with
clear and convincing evidence that a misdemeanor conviction should
not be expunged. Misdemeanor convictions for some offenses—such as
third-degree battery, fourth-degree sexual assault, and indecent exposure—
are subject to a five-year waiting period.
>>Indiana HB 1155 (2014) lowers the burden of proof required in petitions
to expunge all levels of offenses from “clear and convincing evidence” to
a “preponderance of the evidence.” Accordingly, a person now only has to
show that it is more likely than not that he or she has no pending charges,
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VERA INSTITUTE OF JUSTICE
17
no subsequent convictions within the relevant time frame, let the requisite waiting period pass, paid all fees and restitution, and, in some cases,
obtained the prosecutor’s consent.
CLEANSING A CRIMINAL RECORD
Terminology can be confusing when discussing state remedies to “cleanse”
an individual of a criminal record. Some states, such as New York, have remedies which authorize certain adult criminal records to be “sealed” from the
public record, while others, such as Utah, use the term “expunge.” Some
states, such as Indiana, use the terms “expunge” and “seal” interchangeably, and others use slightly different terms such as “expunction.” This leads
to confusion, since for instance “sealing” and “expunging” a criminal record
often have distinct meanings.a
The effect of an expungement or sealing order varies widely from state to
state. Generally, when a criminal record is sealed, the public cannot access
the record and individuals with a sealed record are usually permitted to
deny the record’s existence or the events that led to the criminal record.
For example, potential employers conducting a background check will not
be able to “see” a sealed criminal record and a person may be able to
legally answer “no” if asked on a job application whether he or she was
ever arrested, charged, or convicted of a criminal offense. Still, a sealed
criminal record will physically exist and some entities—such as law enforcement agencies or courts—may be able to uncover its contents, particularly
in a subsequent criminal proceeding; however this is usually only possible
through a court order made for the public interest. In addition, some states
require that sealed convictions be reported in connection with certain job
or license applications (for example, a job application as a weapons-carrying law enforcement officer). On the other hand, the expungement of a
criminal record, while similar to sealing, goes further in that it wipes the
slate clean: a criminal record is typically removed or destroyed, and is not
available for anyone to access, even by court order.
a
In fact, other jurisdictions may also use entirely different terms, such as “annulling” or “vacating”
a conviction which may or may not have a similar legal effect as expungement or sealing.
CERTIFICATES OF RECOVERY
Certificates of recovery—sometimes called certificates of reentry, relief, achievement or employability—are awarded to individuals who meet certain criteria or
otherwise show that they can be productive members of society. These certificates help third parties, such as prospective landlords and employers, make
more informed decisions about applicants with criminal records. While the cer-
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tificates do not expunge or clear a person’s record, they do act as evidence that
the individual is rehabilitated and can shield against the imposition of some
collateral consequences. Often, holding a certificate means that an employer must assume the certificate holder is suitable for employment and, in the
absence of countervailing evidence, may not choose to withhold employment
solely on the basis of a conviction. From 2009 through 2014, at least 9 states and
the District of Columbia began issuing such certificates including:
>>North Carolina HB 641 (2011) allows persons with no prior record who are
convicted of up to two low-level felonies or misdemeanors in the same
court session to petition the court for a Certificate of Relief. The certificate
relieves the individual from most collateral sanctions (penalties affirmatively imposed) flowing from the state but excludes those such as prohibitions on firearm possession, driver’s license revocations and suspensions,
and sex offender registration. The certificate does not automatically relieve
the individual of collateral disqualifications (i.e., the denial of access on
the basis of a criminal conviction to certain activities or privileges, such as
public employment or a professional license), but an administrative agency may view the certificate favorably when deciding on a disqualification
due to conviction. A judge may grant a certificate if an eligible individual
has complied with the terms of the sentence and at least 12 months have
passed since completing the sentence, has no pending criminal charges, is
employed, or is undertaking efforts to become employed, such as participating in an educational program, and granting the certificate would not
pose an unreasonable risk to public safety. If a judge denies the Certificate
of Relief, the individual may reapply after 12 months. The certificate may
be revoked upon any subsequent felony or misdemeanor conviction, other
than a traffic violation.
>>Ohio HB 86 (2011) creates a Certificate of Achievement and Employability
aimed at relieving collateral consequences that effect job eligibility in a
field for which the offender trained while incarcerated. An offender can apply to the Department of Rehabilitation and Correction for the certificate up
to one year prior to release rather than applying to the court post-release.
To obtain a certificate, an offender must complete at least one vocational
program, at least one cognitive or behavioral program, and community
service hours. The certificate testifies that the individual is fit and directs
an employer or licensing authority to give individualized consideration
to the certificate holder unless the employer or licensing authority has
information that proves otherwise. The certificate will be revoked upon any
subsequent conviction other than for a minor misdemeanor, but cannot be
revoked for a violation of a condition of release unless the violation is itself
a criminal offense.
>>Illinois HB 5771 (2012) expands eligibility to receive a Certificate for Relief
from Disabilities. This law lifts the limit on felony convictions so that individuals with more than two prior felonies are now eligible. Individuals are
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ineligible for the certificate if any of their convictions require registration
as a sex offender, arsonist, or a murderer or violent offender against youth.
Those convicted of a Class X felony, any forcible felony, or driving under the
influence of alcohol or drugs are also ineligible.
>>Ohio SB 337 (2012) creates a Certificate of Qualification for Employment
(CQE). Whereas the certificate created by a previous law, HB 86 (2011),
relieved employment and licensing-related collateral consequences for
vocational training completed in prison, the CQE applies to a much broader
array of employment and licensing sanctions. Granted by the court, the CQE
relieves the certificate holder from the automatic ban on certain employment and licensing opportunities, such as construction and security guard
licenses, and entitles him or her to individualized consideration.
>>Rhode Island SB 358 (2013) empowers the parole board to grant Certificates
of Recovery and Reentry to individuals who have met specified standards (to
be determined by the parole board). An individual convicted of a crime of violence or who has a prior felony conviction is not eligible to receive a certificate.
OFFENSE DOWNGRADES
As the advantages of a clean or diminished criminal record become clear,
some states are introducing mechanisms through which felony records may
be reduced to misdemeanor records. This will minimize exposure to collateral
consequences that specifically attach to felonies and provide eligible individuals with an opportunity to escape the stigma of a felony conviction.46 At least
five states have enacted laws of this type to encourage individuals with felony
convictions to comply with conditions of supervision and lead law-abiding lives
after serving their sentences.47 In at least some of these states, the resulting
misdemeanor records would be eligible for sealing or expungement. Three of
those states are:
>>Indiana HB 1033 (2012) allows a sentencing court to convert a Class D
felony to Class A misdemeanor. The court must notify the prosecutor and
hold a hearing finding that the individual is a nonviolent, non-sex offender
convicted of an offense that did not result in bodily injury. Additionally,
the person must wait three years from sentence completion and have no
subsequent convictions or pending charges. Individuals whose convictions
involved perjury or official misconduct are not eligible. In the event an individual is convicted of another felony within five years of the conversion, the
prosecutor may file a motion to convert the misdemeanor back to a felony.
>>Colorado SB 250 (2013) requires that a felony conviction for certain
low-level drug offenses (particularly possession) be vacated in favor of a
misdemeanor conviction if an offender successfully completes probation or
another community-based sentence. The measure is designed as an incentive for individuals to remain compliant and to reduce the negative consequences of a felony conviction. The provision does not apply to persons who
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have previously been convicted of two or more felony drug crimes or any
crime of violence.
>>Idaho S 1151 (2013) provides a mechanism by which a felony conviction may
be downgraded to a misdemeanor after successful completion of probation. A
prosecutor’s consent is required if fewer than five years have passed after sentence completion and is always required if the felony was a serious offense,
such as robbery, kidnapping, and certain offenses involving assault. A petition
to downgrade may be granted if the individual has no intervening felony convictions, no pending charges, and the downgrade is in the public interest.
BUILDING RELIEF INTO THE CRIMINAL JUSTICE PROCESS
Rather than passing laws to minimize exposure to collateral consequences after
conviction and sentence, at least 16 states have built relief mechanisms into
the criminal justice process , often at the front-end, to minimize the extent of
an individual’s contact with the criminal justice system.48 Some states accomplished this by creating or expanding deferred prosecution programs through
which a defendant is charged with a crime but not prosecuted. If the defendant
successfully completes a treatment or other program, or stays out of trouble for
a specified period of time, the charges are dismissed and in certain instances,
arrest and charging records are sealed as well. Other states created or expanded
deferred adjudication programs in which a defendant is charged, prosecuted,
and found guilty, but a conviction (sometimes called an order of judgment) is
never entered. Similar to deferred prosecution, eligible defendants are given an
opportunity to complete a treatment or other program, and stay out of trouble
for a specified probationary period. If successful, the guilty verdict is vacated
and the case dismissed; upon failure, the order of judgment is entered and
the individual proceeds to formal sentencing. Many of the relief mechanisms
enacted include provisions which make sealing or expungement automatic or
presumptive following the completion of the program, eliminating the need for
individuals to submit a future petition after an applicable waiting period has
passed. Additionally, at least one state has instituted mechanisms which allow
a judge to order relief from collateral consequences during sentencing. Five of
those states are:
>>Arkansas HB 1608 (2011) makes mandatory a previously discretionary
deferred judgment program for first-time felony and misdemeanor drug
offenders of non-schedule I substances. Now all eligible defendants must
have their judgments deferred and be placed on probation for at least one
year. Upon completion of probation, the charges are dismissed and misdemeanor records are mandatorily sealed.
>>Illinois SB 3349 (2012) creates a deferred prosecution program for firsttime nonviolent felony property or drug possession defendants whose
offenses do not require a mandatory sentence of incarceration. Known as
the Offender Initiative Program, prosecution of eligible defendants is suspended for at least 12 months, during which time defendants must remain
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crime-free, avoid all firearms, make full restitution to any victim, obtain
employment or perform 30 hours of community service, and work towards
obtaining a GED. The court also has the discretion to impose additional
terms, including medical or psychiatric treatment or periodic drug testing.
After fulfilling program terms, the charges and proceedings against the
defendant are dismissed.
>>Michigan HB 5162 (2012) establishes a deferred judgment veterans treatment court program, in which defendants are required to plead guilty and
enter a probation program. Upon successful completion, charges are dismissed and the individual is discharged. Although records are closed from
public inspection and disclosure, they remain available to courts and law
enforcement agencies.
>>Colorado HB 1156 (2013) standardizes the state’s locally-run diversion programs and conditions state funding on each program’s compliance with
certain enumerated criteria. According to the new standards, a district
attorney maintains broad discretion in determining eligibility and terms of
a diversion program. In general, he or she may suspend prosecution for up
to two years while a defendant completes a probation or treatment program. Upon completion, charges are dismissed and defendants are restored
to their pre-arrest status, permitting them to deny the charges or proceedings against them. After completing diversion, defendants may ask for their
records to be sealed and, in most cases, judges must do so upon request.
>>Colorado SB 123 (2013) creates a procedure in which a judge may issue an order of collateral relief at the time a person is sentenced to community-based
supervision, which can relieve the individual of certain collateral consequences, such as barriers to housing and employment. An individual may not
obtain this order if the offense was a crime of violence, led to the permanent
disability of the victim, or requires registration as a sex offender.
>>Minnesota HF 2576 (2014) provides that individuals who have completed
a deferred adjudication or other diversion program may have the related
arrest, indictment, trial, or other records sealed after remaining crime-free
for a one year waiting period. Previously, records of arrest and prosecution
could only be sealed if the case ended in an acquittal.
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AMELIORATING EMPLOYMENT-RELATED
COLLATERAL CONSEQUENCES
Employment is critical to reducing recidivism and ensuring successful reentry for individuals with criminal convictions.49 However, criminal records can
function as a “negative curriculum vitae.” 50 Because criminal records are readily
available online, they can serve as a basis for employment discrimination by
potential employers. This burden is exponentially exacerbated by the complex web of formal employment-related barriers triggered by operation of the
law and which flow from a criminal conviction.51 For example, laws mandate
that background checks be conducted on the following classes of prospective
employees: those who will have responsibility for the safety and well-being of
children, the elderly, or individuals with disabilities; port workers; people who
volunteer with certain youth-focused organizations; people who work in public
or private schools; those who will work in the financial industry, including
mortgage processing; people in nursing or caregiving positions; and workers
licensed to handle hazardous materials, among others.52
From 2009 to 2014, at least 22 states and the District of Columbia enacted
laws aimed at improving the employment prospects for individuals with a
conviction record. A number of laws instituted “ban the box” policies, which
prevent prospective employers from requiring the disclosure of criminal history
information at the initial stages of the application process. Other states enacted
laws to remove or mitigate obstacles individuals with criminal histories face
when seeking to be licensed in certain professions. Meanwhile, other laws focused on offering positive incentives, such as tax credits, to employers who hire
ex-offenders or on removing or minimizing potential legal liability associated
with hiring people with criminal records.
Ban the box
“Ban the box” initiatives—which take their name from the question on job
applications that asks the applicant to “check this box if you have ever been
convicted of a crime”—are designed to facilitate the transition of ex-offenders
into the workplace by delaying an inquiry into an individual’s criminal history
until the employer can get some sense of the prospective employee as a person,
and not simply as an ex-offender. In particular, these initiatives urge employers
to screen candidates based on job skills and individual qualifications before
looking into an applicant’s criminal history. However, these laws vary both in
strategy and impact. For example, some laws apply only to public employers,
while others include private employers. Some policies specify a point in the
hiring process when an employer is permitted to obtain criminal history information (e.g., at the interview stage or after a conditional offer is made) while
others institute time limitations after which criminal convictions may no longer be considered at all. Finally, some ban the box laws not only delay a criminal
history inquiry, but also outline requirements for responsible consideration in
the event a background check returns information regarding a conviction, such
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as requiring that arrest records and certain misdemeanor records be disregarded or requiring the employer to consider the nature of the offense and the time
elapsed since the conviction.
Ban the box laws have steadily gained momentum since 1998, when Hawaii was
the first state to adopt the initiative. Since then, at least fourteen states, the District
of Columbia, and seventy localities have adopted ban the box policies, a majority of
which were enacted from 2009 through 2014.53 Four of those states are:
>>Minnesota HF 1301 (2009) institutes a ban the box policy for prospective
state employees. Public employers may not inquire about an individual’s
criminal record until after the applicant has been selected for an interview.
Minnesota SF 523 (2013) extended that protection to prospective private
employees. Private employers may not consider, inquire about, or require
disclosure of criminal records until after an applicant is selected for an
interview, or if no interview is offered, until after a conditional offer of
employment is made.
>>New Mexico SB 254 (2010) mandates that criminal conviction history may
not operate as an automatic bar to state employment or licensing, and only
in certain circumstances can it be considered. An employer or licensing
agency may not inquire about a criminal record on an initial application
and may only consider a person’s record once the applicant has been selected as a finalist. Notably, arrest records not leading to conviction, and misdemeanor records not involving moral turpitude, cannot be considered at all.
>>Indiana HB 1033 (2012) prohibits an employer from asking an applicant
whether he or she has had a criminal record sealed or restricted. An employer’s non-compliance is now a class B infraction, which carries a maximum penalty of $1,000.54
>>Delaware HB 167 (2014) prohibits public employers from inquiring about or
considering criminal history, credit history, or credit score until after the first
interview. Although employers may inquire into these things later in the application process, they may not consider felony or misdemeanor convictions
if more than ten or five years, respectively, have elapsed since release from
custody (or from the sentencing date if there was no incarceration). If these
time periods have not yet elapsed, employers must still consider the nature of
the crime and its relationship to the job, any rehabilitation or good conduct
demonstrated by the applicant, the time elapsed since the conviction, and the
likelihood that the circumstances leading to the offense will recur.
Reducing restrictions on licensing
Based on the presumption that individuals with a criminal record are less
trustworthy or more crime-prone than others, criminal records often render
individuals with criminal histories ineligible to enter entire professions, such
as those such as plumbing, teaching, and nursing, which require practitioners
to be licensed, and for which licensing regulations can disqualify those with
conviction histories.
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From 2009 to 2014, eight states enacted 11 laws to remove or relax disqualifications to certain licensed professions applicable to those with criminal records.
Some of these laws reduced or eliminated waiting periods before an offender
may apply for a license. Others instituted a “ban the box” in the licensing context—these laws prohibit licensing agencies from obtaining criminal history
information at the initial application stage, and often require agencies to consider factors such as the time elapsed since the conviction and the relationship
between the license and the conviction offense. Some laws adopted an intermediate approach, allowing for conditional licenses, which become permanent
after one year without incident. Finally, other laws go even further and prohibit
outright disqualification from a license solely on the basis of a criminal record.
Five of those states are:
>>Delaware SB 59 (2011) reduces the waiting periods across all state occupational and licensing codes before an ex-offender may receive a waiver of his
or her conviction. The felony waiting period is changed from five years after
completion of sentence to five years from conviction, as long as the individual is not serving any part of his or her sentence at the time of application.
Waiting periods for misdemeanors are eliminated.
>>Florida SB 146 (2011) prevents state agencies from denying applications for
licenses, permits, employment, or certificates solely on the basis of an applicant’s criminal history. Applications for firearm or concealed carry licenses
are excluded.
>>Louisiana HB 295 (2012) prohibits disqualification or ineligibility to practice
a licensed trade or profession solely because of the existence of a criminal
record, unless the conviction directly relates to the position sought.
>>Ohio SB 337 (2012) prohibits specific agencies from denying licenses on the
basis of criminal history after a one-year misdemeanor waiting period and
a three-year felony waiting period, so long as the conviction offense is not
related to the license, is not a first- or second-degree crime of violence, and
is not a sex offense. Even before the one- and three-year waiting periods
have elapsed, the licensing board or agency may issue licenses on a discretionary basis. Additionally, SB 337 authorizes conditional licenses to be
issued, which become permanent after one year.
>>Texas HB 798 (2013) amends the occupational licensing law so that those
convicted of certain misdemeanors remain eligible to obtain licenses, unless the license authorizes the possession of a firearm and the misdemeanor conviction was a crime of domestic violence.
Reducing risk to employers
In today’s litigious environment, employers can be hesitant to hire individuals with criminal records because of heightened exposure to negligent hiring
or negligent retention lawsuits in the event an ex-offender commits a crime
or causes harm to another person (for example, a customer, client, or another
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employee) while carrying out his or her work duties .55 Broadly speaking, these
lawsuits are designed to allow an individual who is harmed by the work-related
conduct of an employee with a criminal history to sue the employer for negligently hiring or retaining someone who is not fit to be an employee.
From 2009 to 2014, at least 10 states and the District of Columbia enacted laws
removing this hurdle by shielding employers from liability in these lawsuits,
including:
>>Colorado HB 1023 (2010) precludes the use of an employee’s criminal history in a civil action against an employer if the employee’s record was sealed,
the record of arrest or charge did not result in a conviction, the employee
received a deferred judgment, or if the criminal history was not related to
the facts giving rise to the lawsuit.
>>Massachusetts SB 2583 (2010) shields employers from liability if they used
the state’s background check system (CORI) to conduct the initial background check on the employee. Conversely, the employer is not shielded
from liability if it used a commercial background check provider, because
CORI provides safeguards and includes limitations that commercial systems do not.
>>District of Columbia B19-889 (2012) provides that criminal history information may not be used as evidence in a civil suit if an employer made a reasonable hiring decision in light of specified considerations, such as the relationship of the conviction offense to the employee’s job duties, the time elapsed
since the conviction, and demonstrated rehabilitation or good conduct.
>>Minnesota HF 2576 (2014) makes an employee’s expunged criminal history
inadmissible as evidence in a civil case against an employer or landlord.
Incentivizing employers
From 2009 to 2014, five states enacted laws aimed at facilitating the employment of individuals with criminal histories by offering positive incentives
to prospective employers. For example, some laws raised the amount of tax
credit available to businesses that hire ex-felons; others required the removal
of employers’ names and contact information from sex offender registries, or
repealed a restriction that prevents individuals with criminal records from
working around alcohol. Three of those states are:
>>New York AB 9706 (2010) allows individuals with a felony conviction to
work at a restaurant, catering facility, hotel, club, or recreational facility
which serves alcohol. Previously, no holder of an alcoholic beverage license
could employ a person with a felony conviction other than a retail store
with off-premises consumption.
>> Illinois SB 1659 (2013) increases the tax credit for wages paid to ex-felons
from $600 to $1500. The law also increases from one year to three years the
time period after release in which an employer must hire an ex-offender to
qualify for the credit. Employers are not eligible to claim the tax credit for
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hiring individuals with a conviction for a sexual offense.
>>Texas SB 369 (2013) incentivizes employers to hire people with a sex offense conviction, by clarifying that information regarding a sex offender’s
employer’s name and address may no longer be listed publicly on the sex
offender registry.
>>Delaware HB 167 (2014) introduces a state policy to consider the fairness of
employers’ background check policies when evaluating contracts for state
business and only do business with contractors that have written policies
and standards that comply with the state’s ban the box provisions
ACCESS TO INFORMATION
The impact of collateral consequences has grown exponentially as legislators
have added more consequences to state codes and technology has increased
public access to criminal records.56 Because defendants are not constitutionally
entitled to notice of these consequences before being convicted (apart from immigration consequences), many are imposed without warning.57 Not only are
individuals unaware of the restrictions they will face after sentence completion,
they are also uninformed about remedies to which they may be entitled. At the
same time, with easy access to criminal record repositories, employers, landlords, or admissions committees can easily discover criminal history records,
even those that are outdated or incorrect. The stigma resulting from the knowledge of a person’s criminal history can act as a de facto bar to housing and other
forms of social acceptance, even where no legal bar exists.58
Since 2009, at least 17 states and the District of Columbia have taken steps
to inform people of their rights, clarify remedies concerning criminal record
information, or delineate how individuals or corporations can responsibly
use criminal history information to ensure procedural fairness. Some of these
laws require that individuals leaving prison be given information on how their
convictions may impact their civil rights and on expungement and sealing
remedies available to them. Other laws require employers who reject a candidate because of an individual’s criminal history to institute an appeals process
through which a candidate can challenge inaccurate criminal history data or
present evidence why his or her criminal history should be overlooked. Other
laws require employers to standardize and publish their criminal background
policies, and some limit the information that third-party background check providers may disclose. Finally, other laws provide for enforcement mechanisms
to ensure against the misuse of a person’s criminal history information by, for
example, making it a crime to harass a person about his or her criminal history.
Seven of those states are:
>>New Jersey A 4201 (2009) requires state correctional facilities to provide individuals leaving prison with written information concerning voting rights,
expungement options, programs to help with employment, housing, and
education needs, and generalized information about child support require-
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ments. The state is also required to provide notification of any fines due,
outstanding warrants, a criminal history report, and a full medical record.
>>California SB 1055 (2010) requires that a person, who is rejected as a result
of a criminal background check by a state agency for employment, contract, or volunteer work involving confidential or sensitive information, be
provided with a copy of his or her criminal record. Additionally, this law
requires the state to institute a written appeals process for rejected individuals to challenge ineligibility determinations based on the individual’s
criminal record.
>>Massachusetts SB 2583 (2010) makes it a crime to use criminal records to
harass someone, and also makes it a separate offense to commit a crime
against a person based on their criminal record, both punishable by up to one
year incarceration and/or a maximum fine of $5,000.59 The law also requires
any employer who conducts at least five background checks in a year to have
a standardized, published policy for doing so, including provisions regarding
notifying the applicant of a potential adverse decision, supplying the applicant with copy of the background check, and informing the applicant of
the appeals process for correcting an incorrect record. Non-compliance may
result in a fine. Additionally, the law allows free, periodical self-audits of all
requests for criminal records received by the state and, so long as funding
allows, requires the state to notify a person when an inquiry is made into his
or her criminal record.
>>Indiana HB 1033 (2012) specifies that a criminal history provider may only
provide information that relates to a conviction. The provider may not provide
any information related to an infraction, an arrest, a charge that did not lead
to a conviction, an expunged or restricted conviction, or any conviction of a
Class D felony that has been downgraded to a misdemeanor (which may only
be shown as a misdemeanor conviction). The provider is also prohibited from
providing outdated information and information it knows to be inaccurate.
Notably, the law introduces civil penalties for non-compliance. Now the attorney general may recover a civil penalty from the provider and the individual
who is the subject of the criminal history report may sue for damages.
>>Colorado SB 123 (2013) requires probation and parole officers to give notice at the final supervision meeting with individuals convicted of certain
crimes that they have the right to have their criminal record sealed and
that doing so can alleviate certain collateral consequences. Officers must
provide their supervisees with a list of eligible offenses and the associated
waiting periods.
>>Hawaii HB 1059 (2013) requires judges to advise criminal defendants of potential immigration consequences before he or she enters a plea or begins trial.
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ADDRESSING DISCRETE COLLATERAL
CONSEQUENCES
From 2009 to 2014, 19 states passed laws addressing specific
collateral consequences or areas of concern, including those
with respect to housing, immigration, health care, family
issues, financial health, education, public assistance, enfranchisement, sex offender registries, and driving privileges,
including: 60
>>South Dakota HB 1123 (2009) removes the prohibition on
welfare eligibility for felony drug offenders.
>>New York AB 5462 (2010) provides an exception to the
requirement that the state file for termination of parental
rights when a child is in foster care for a certain length
of time. The parent may avoid having his or her parental
rights terminated if the child is in foster care due to the
parent’s incarceration or participation in a residential
substance abuse treatment program and the parent maintains a meaningful role in the child’s life.
>>Arkansas SB 806 (2011) mandates that a criminal conviction cannot be used to disqualify a person from eligibility
for a state-subsidized benefit unless there is a specific
statutory bar. Benefits include scholarships, grants, and
loan forgiveness programs.
STATE TASK FORCES
The information vacuum surrounding collateral
consequences is often so vast that even policymakers struggle to stay abreast of the array of
provisions that impose collateral consequences
on individuals with a criminal record. These provisions are rarely codified in one place, but are instead often spread across multiple statutes, regulations, or policies on the federal, state, and local
levels. As a result, at least eight states passed
bills establishing task forces or commissions to
catalogue collateral consequences and consolidate expungement procedures. These states are:
>>Arkansas SB 806 (2011)
>>Florida SB 146 (2011)
>>Illinois HB 297 (2011)
>>Massachusetts SB 2583 (2010)
>>Nevada SB 395 (2013)
>>New Hampshire HB 1533 (2010)
and HB 1144 (2014)
>>South Carolina SB 900 (2014)
>>Delaware SB 12 (2011) repeals the lifetime ban on receiv>>Vermont HB 413 (2014)
ing certain federal benefits for those with a felony drug
conviction. Although under federal law anyone who is
convicted of a drug-related felony cannot receive SNAP
(Supplemental Nutrition Assistance Program, formerly food stamps) and
TANF (Temporary Assistance to Needy Families) benefits, states are free to
pass legislation that limits the ban or eliminates it entirely.
>>Washington SB 5168 (2011) reduces the maximum sentence for gross misdemeanors from 365 days to 364 days in order to avoid federal immigration
consequences that are triggered by conviction of an offense carrying a
possible one-year sentence of imprisonment.
>>Washington SB 5423 (2011) creates a mechanism for courts to eliminate
interest accrued on non-restitution debt during incarceration. This applies
to all legal financial obligations levied as a result of a criminal conviction,
except for restitution.
>>Ohio SB 337 (2012) allows for modification of child support orders, which are
based on a person’s income, when a parent suffers a reduction in income
due to incarceration. Previously, incarceration was deemed voluntary
unemployment and potential income was imputed to the parent for the
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purposes of calculating how much child support was owed. Under this law,
for those incarcerated at least one year, in most situations, incarceration is
no longer considered voluntary unemployment and no potential income is
imputed to calculate child support obligations. Notably, when calculating
potential income after release, this law considers the parent’s decreased
earning capacity due to a felony conviction.
>>California AB 720 (2013) provides than an inmate of a county jail may not
be terminated from state Medicaid (Medi-Cal) solely because of incarceration. Instead, the inmate’s Medi-Cal enrollment will be suspended until
release. Additionally, the law allows county jails to enroll eligible inmates
who previously were not enrolled, with coverage taking effect upon release.
>>Colorado SB 229 (2013) allows for removal from the sex offender registry if
the individual was under 18 years of age at the time of the commission of
the offense. Previously, removal was only permitted when the offender was
under 18 at the time of conviction.
>>Delaware HB 10 (2013) amends the state constitution by eliminating the
five-year waiting period for voting rights to be restored to eligible felons
after sentence completion. Those convicted of murder, manslaughter, corruption, or a sex crime are ineligible and remain disenfranchised.
>>Georgia HB 349 (2013) gives judges in drug and mental health courts the
discretion to fully restore driving privileges or issue limited driving permits.
Previously, a person had to wait at least one year from the date of his or her
conviction or plea to apply for early reinstatement and the application was
made to the Department of Driver Services, not to the court. Georgia HB
365 (2014) extends HB 349 so that judges of any court may restore driving
privileges, not just judges in drug and mental health courts.
>>Louisiana HB 219 (2013) mandates that the mere existence of a criminal
record cannot disqualify someone from adopting a child. When considering
whether to approve a prospective adoption placement, a family court must
evaluate the number and type of offenses and the length of time that has
passed since the most recent offense.
Limitations of reform
The volume of bills passed that mitigate the impact of collateral consequences
over the last six years —at least 155 bills in 41 states and the District of Columbia,
93 of which were enacted in 2013 and 2014 alone—indicates that state legislatures now acknowledge that to improve public safety, tangible steps are needed
to support the successful reintegration of convicted individuals after sentence
completion. Research has shown that employment, stable housing, educational
opportunities, and civic engagement are all critical to reducing the risk of reoffending. Yet the barriers erected by collateral consequences impede the ability of
individuals with criminal histories to achieve these important goals.61
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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
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FAMILY STABILITY
Involvement in the criminal justice system often has a destabilizing effect on families. Over half of state inmates and
nearly two-thirds of federal inmates are parents of children under age 18.a As of 2007, 2.3 percent of individuals under
age 18 had at least one incarcerated parent, an increase of 80 percent since 1991.b Most of these parents—even those
who did not live with their children—contributed income, child care, and social support before imprisonment.c However, during incarceration, fathers in particular lose contact with their children. Only 40 percent have weekly contact
of any kind with their child, but contact declines as the sentence continues; over half of fathers in prison never have
an in-person visit with their child.d
Strong and secure family structures increase an individual’s incentives to conform with social and legal rules and
norms—individuals with fewer attachments have less to lose.e Not surprisingly, children with at least one incarcerated
parent suffer higher rates of low self-esteem, depression, emotional withdrawal, and disruptive behavior, and have an
increased likelihood of future delinquency and criminal offending.f
Even though the parent-child relationship often deteriorates during incarceration, many fathers view prison as an
opportunity to reflect on their relationships with their children, improve as parents, and prepare to start over upon
release.g Fathers who successfully do so tend to have lower recidivism rates, as family ties act as rehabilitative assets.h
It is in the interests of public safety, therefore, that public policy focus on helping incarcerated parents maintain and
strengthen family bonds, and assisting these parents in providing support for their children after release—for example, by increasing employment opportunities or opting out of bans on public assistance for certain ex-offenders.i
In the last several years, several states have taken steps to strengthen family relationships for incarcerated offenders or
improve their capacity to provide support upon release. For example, Nebraska LB 483 (2013) creates a family-based
reentry program for incarcerated parents with young children that incorporates parental education, relationship skills
development, and reentry planning in conjunction with an individual’s family; and Hawaii SB 2308 (2014) assists children
with incarcerated parents by facilitating visitation and by providing social welfare benefits, programming, and reentry
support.
Washington HB 1284 (2013) and New York AB 5462 (2010) make it harder for an incarcerated parent’s parental rights
to be terminated because of an extended absence from the child’s life due to imprisonment. New York AB 8178
(2009), Ohio SB 337 (2012), and West Virginia HB 4521 (2012) allow child support obligations to be recalculated during
or after incarceration so that the formerly incarcerated can provide the support they are able to, and are not burdened
by outstanding payments they have no reasonable ability to make.
Lauren E. Glaze and Laura Maruschak, (Washington, DC: BJS, 2008, revised 2010), 1.
Ibid.
c
Jeremy Travis, Amy L. Solomon, and Michelle Waul, (Washington, DC: The Urban Institute, 2001), 38.
d
See ibid. There are many factors that make in-person visits difficult for children. For instance, long distances between the prison and the community
where the child lives, little food, limited activities, time limitations, and non-accommodating physical facilities. For more information, see Council on
Crime and Justice, (Minneapolis, MN: Council on Crime and Justice, 2006). Over 60 percent of parents serving state sentences and over 80 percent of
parents serving federal sentences are housed more than 100 hundred miles away from their homes. Over 40 percent of parents in the federal system are
more than 500 miles from home. See Philip M. Genty, “Damage to Family Relationships as a Collateral Consequence of Parental Incarceration,” 30(5)
(2002), 1673.
e
Jeffrey Fagan and Tracey L. Meares, “Punishment, Deterrence and Social Control: The Paradox of Punishment in Minority Communities,” 6 (2008).
f
Jeremy Travis, Amy L. Solomon, and Michelle Waul, (Washington, DC: The Urban Institute, 2001), 39.
g
J.A. Arditti, S.A. Smock, and T.S. Parkman, “It’s Hard to Be a Father: A Qualitative Exploration of Incarcerated Fatherhood,” 3 (2005); and K. Healy, D.
Foley, and K. Walsh, “Parents in prison and their families: Everyone’s business and no-one’s concern,” (Queensland, Australia: Catholic Prison Ministry 2000).
h
J. Petersilia, (New York: Oxford University Press, 2003), 42; J. Creasie Finney Hairston, Prisoners and Families: Parenting Issues During Incarceration,”
Paper presented for U.S. Department of Health and Human Services and Urban Institute funded conference (National Institutes of Health January 30-31,
2002); and Sue Howard, Paper presented at the 7th Australian Institute of Family Studies Conference, Sydney, Australia.
i
Jeremy Travis, Amy L. Solomon, and Michelle Waul, (Washington, DC: The Urban Institute, 2001), 40.
a
b
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IMMIGRATION CONSEQUENCES
Even if individuals are reasonably shielded from state-imposed collateral
consequences, they are still exposed to collateral consequences imposed
on the federal level, particularly immigration consequences.
As a matter of law, immigrants—even permanent residents—will be deported upon conviction of any state crime punishable by at least one year
of incarceration, regardless of whether the state classifies the offense as a
misdemeanor or felony.a Some states, such as Nevada with SB 169 (2013),
and Washington with SB 5168 (2011), have responded by reducing the
maximum incarceration for a misdemeanor from 365 days to 364 days, to
explicitly avoid triggering federal immigration consequences.
In 2010 the Supreme Court recognized in Padilla v. Kentucky that there are
constitutional limits on the immigration-related consequences persons will
suffer when they do not receive sufficient notice of potential deportation
as a result of a criminal conviction.b In Padilla, the defendant was a permanent resident and Vietnam War veteran who had been living lawfully in
the United States for decades before his arrest for transporting marijuana.
His attorney advised him that he need not worry about any immigration
consequences of a guilty plea due to his status as a permanent resident.
However, the attorney was incorrect and the federal government instituted deportation proceedings. When Mr. Padilla sued, the Supreme Court,
emphasizing the severity and certainty of deportation, held that a defense
attorney must advise a non-citizen defendant about immigration-related
collateral consequences of conviction before accepting a plea.c
Two states have recently passed laws to ensure that criminal defendants
are aware of the possible immigration-related ramifications of a guilty
plea. Through HB 1059 (2013), Hawaii now requires all judges to inform
defendants of possible immigration-related consequences before the entry of plea or at the start of trial. Likewise, Vermont recently passed HB 413
(2014), which requires all defendants to be given information regarding
all possible collateral consequences, including immigration-related consequences, both at the time they are charged and before entering a plea.
a
Padilla v. Kentucky, 559 U.S. 356 (2010). For information regarding the import of the decision,
see Margaret Colgate Love, “The Collateral Consequences of Padilla v. Kentucky: Is Forgiveness
Now Constitutionally Required?” University Of Pennsylvania Law Review PENNumbra 160 (2011)
(deportation is “virtually inevitable” because “Congress has eliminated judicial and administrative
mechanisms for discretionary relief”); and Gabriel J. Chin, “Making Padilla Practical: Defense
Counsel and Collateral Consequences at Guilty Plea,” Howard Law Journal 54 (2011).
b
See ibid.
c
For more information about the Padilla case generally and possible future implications for other
collateral consequences, see Margaret Colgate Love, “Collateral Consequences After Padilla v.
Kentucky: From Punishment to Regulation,” Saint Louis University Public Law Review 31 (2011).
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079
Some legislative efforts to ameliorate collateral consequences and support
reentry come from the recognition that individuals with criminal histories deserve a second chance at full citizenship and eschew the sharp moral distinctions
between law-abiding and law-breaking individuals that had been the hallmark
of the tough-on-crime era. Significantly, this recognition has been bipartisan in
nature, with members of the two major parties supporting this idea. However,
while recent policy shifts to remove or alleviate the impact of these consequences may indicate a broader shift in how the criminal justice system views
law-breakers, the vast number of collateral consequences largely remains in place
and a closer look at recent legislation suggests that efforts to date do not go far
enough to achieve the critical public safety outcomes that are also sought.
REFORMS ARE NARROW IN SCOPE
Much of recent legislation is narrowly tailored in terms of which offenders and
offenses it impacts, limiting its potential. For instance, recent legislation that
creates or expands expungement or sealing mechanisms typically does not go
beyond first- or second-time low-level offenders (most often misdemeanor or
low-level felony offenders), and only applies to certain types of offenses, typically drug or property offenses. Offenders who are most often disqualified are
those with lengthy criminal histories or who are considered habitual offenders;
and whole categories of offenses are frequently excluded from the purview of
new or existing relief mechanisms—typically, all violent or sexual offenses.
While many of these exclusions on their face may make sense, a lengthy
criminal history may nonetheless be made up entirely of property, drug, or
fraud-related charges. For instance, the label of violent or nonviolent as a
demarcation for eligibility can be a blunt tool that excludes some non-serious offenders since violent offenses are typically broadly defined. Often, to be
considered “violent” the law only requires that an individual possess a weapon
while committing an offense, even when not used, or never intended to be
used. Additionally, some offenses, such as burglary and drug trafficking, that
often do not involve force or violence are nevertheless classified as violent.62
These categories are fundamentally too broad. Relief should be made available
on a case-by-case basis and use risk assessments from corrections officials
and others.
RELIEF MECHANISMS ARE NOT EASILY ACCESSIBLE
While narrow criteria for eligibility may limit the pool of individuals impacted,
other factors such as distance, prohibitive economic costs, and unfamiliarity
with formal court procedures can make access to relief mechanisms difficult
even for those who are eligible. For example, some relief mechanisms (e.g.,
expungement or sealing remedies, certificates of recovery or rehabilitation,
offense downgrades) require a formal petition be submitted to a court, often
requiring a public hearing with payment of an applicable filing fee—a process
that can be time-consuming, confusing, and costly. 63 Cost alone can deter oth-
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VERA INSTITUTE OF JUSTICE
33
erwise eligible individuals—for example, in Louisiana, the nonrefundable filing
fee for expungement is $350.64 Even so, individuals may not have the necessary
time because of work, school, or because they are a primary caregiver with
little ability to take the necessary time off. If cost and time are not problems,
the filing process itself can be extremely onerous.65 For example, individuals
often have to gather documentation of their criminal histories from multiple
state agencies and bodies, commonly in-person and for a fee. If and when these
records conflict with one another, or when records are missing, the individual
shoulders the burden of reconciling any discrepancy or deficiency.66 Additionally, in many states, petitioners must give notice of their intention to file and any
ultimately issued relief certificates must be sent to all state agencies whose records stand to be affected by the order.67 Since public defenders are typically not
available at this point in the criminal justice process, and given the potential
complexity of such petitions, individuals may need to hire independent counsel
to assist in navigating the process.
WAITING PERIODS ARE LONG IN MANY CASES
Although some states have reduced waiting periods after which individuals can
access relief, many remain excessively long. For example, under Massachusetts
SB 2583 (2010)— a law that shrinks the applicable waiting period for expungement—individuals with a misdemeanor conviction must still wait five years,
and with a felony conviction 10 years, before they can petition a court. Under
North Carolina HB 1023 (2012), first-time nonviolent felony or misdemeanor offenders must wait 15 years from completion of sentence; and although Oregon’s
HB 3376 (2011) applies to higher-level felony offenders, the applicable waiting
period remains a very long time indeed, at 20 years. While waiting periods are
typically justified on public safety grounds, long waiting periods run the risk
of increasing the likelihood of recidivism since without relief many are denied
jobs, housing, public services, educational opportunities, civic engagement (including voting), and custody of children. Moreover, research demonstrates that
long waiting periods have only a marginal impact on public safety.68
Even when applicable waiting periods have passed, individuals face other obstacles, including proving certain factual circumstances, such as gainful
employment or a requisite level of rehabilitation—milestones made difficult
to achieve by the substantial barriers many of the education, employment, and
licensing-related collateral consequences themselves create. Moreover, due to the
discretionary nature of many recent reforms, a petition’s success still depends on
the determination by a judge or the agreement of the prosecutor (or both), and it
is by no means certain that judges or prosecutors will participate in a new policy,
even when all eligibility requirements are objectively satisfied.69
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081
NEW RULES RESTRICTING THIRD-PARTY USE OF CRIMINAL
HISTORY ARE DIFFICULT TO ENFORCE
Although some new laws aim to circumscribe third-party use of criminal history (e.g., “ban the box” initiatives regarding employment or licensing), they offer
no guarantee that third parties will not use criminal history to discriminate
against individuals with a past criminal conviction, absent strong enforcement
mechanisms. For example, while many of these laws prohibit the denial of an
employment applicant “solely on the basis of an applicant’s criminal history,”
there is no prohibition against the would-be employer considering criminal
history among a variety of other factors, and therefore no guarantee that an applicant’s criminal history will not serve as the primary basis for job or licensing
denial. To activate their right against discrimination, rejected applicants would
have to know that a rejection was exclusively based on their criminal history,
information not regularly provided to applicants. Since many states do not
require a formal report of an adverse employment decision, applicants would
have to sue the prospective employer in order to gain access to their application
file; or more unlikely, the employer would have to admit to denying an application on an illegal basis.70 Clearly, for many jobs a certain kind of criminal record
is a legitimate reason to deny employment, but a blanket refusal to hire anyone
with a record is discriminatory.
In addition, as state agencies and court systems routinely make criminal
records and dockets available online, records are easily duplicated by, or sold
directly to, a growing sector of private companies who perform “background
search” services, often pulling from their own independently created databases.71 However, unlike state record repositories, these private companies have
little incentive to remove or remedy inaccurate data, nor are they required to
remove sealed or expunged records—fundamentally undermining the effectiveness of relief mechanisms.72 Because these companies are not substantially
regulated by federal or state law, efforts to enforce fair reporting practices are
difficult.73 Without limiting online access to criminal records—or at minimum,
ensuring that third-party commercial databases are strictly regulated to ensure
accuracy in reporting and compliance with relief orders—unfairly and incorrectly reported criminal histories will continue to hinder the efforts of people
with a record to engage productively in society.
Colleges and universities also routinely collect criminal histories through
their admissions processes—despite the lack of empirical evidence that shows
students with criminal records pose a risk to on-campus safety.74 A lack of transparency exacerbates the issue, as these institutions often do not have written
policies regarding how to treat candidates with criminal records.75 Without
clear information on how educational institutions utilize criminal histories in
their decision making, rules that restrict the use of criminal records in admissions decisions are hard to formulate and difficult to enforce.
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VERA INSTITUTE OF JUSTICE
35
Recommendations
Policymakers interested in promoting safer communities and better outcomes
for justice-involved people and their families would do well to consider instituting reforms to ameliorate the impact of collateral consequences for individuals
after sentence completion. To ensure future reform efforts fulfill their promise
and are sustainable and comprehensive, policymakers should consider the
following recommendations:
PROMOTE THE FULL RESTORATION OF RIGHTS AND
STATUS
Full rights and status should be restored to individuals as close to the completion of their sentences as possible. An individual’s criminal history status often
impedes that person’s ability to achieve critical milestones shown to lower rates
of reoffending, including employment, housing, and education. Research demonstrates that the public safety benefits of restricting and monitoring the activities
of these people is, as years go by, increasingly outweighed by the negative public
safety consequences of long-term barriers to reentry and rehabilitation.76 Policy-
makers should weigh this risk and promote the restoration of rights and status
for individuals as close as possible to the completion of their sentence.
APPLY REMEDIES TO MORE PEOPLE
Criminal records cast a long shadow over an individual’s life—even if the individual was convicted of a minor crime—or, due to the widespread availability of arrest records, not convicted at all. By making sealing and expungement remedies
more broadly available, policymakers can support increased access to educational, employment, and financial progress by individuals whose continued stigmatization in no way serves the public interest. Broadening eligibility for relief can
be achieved through a variety of means: expanding the classes of eligible crimes;
instituting automatic expungement of arrests that did not lead to conviction,
or of certain types of convictions directly after sentence completion; or making
it easier for individuals to demonstrate that they are fit for sealing or expungement by either easing the elements of rehabilitation individuals must prove, or
by presuming individuals have fulfilled those requirements unless a prosecutor
shows otherwise. Similarly, mechanisms which allow individuals to reduce felony
records to misdemeanor records (where these records could also be eligible for
sealing or expungement) would both reduce the number of individuals impaired
by the collateral consequences particular to felonies and further expand the pool
of individuals eligible to achieve a clean or diminished criminal record.
Where expungement or sealing is unavailable, increasing the availability
of and broadening the criteria for certificates of recovery or rehabilitation can
provide relief to a greater number of individuals facing debilitating barriers to
education, employment, licensing opportunities, and housing.
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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
083
MAKE REMEDIES EASIER TO ACCESS
While increasing the availability and scope of relief is critical, the potential impact of these remedies is significantly undermined if eligible individuals cannot
access them due to lack of awareness, prohibitively high costs, an impenetrable
process, or excessively long waiting periods. To raise awareness, laws are necessary that require convicted individuals be fully apprised of the impacts of their
criminal records and the relief for which they may be entitled. For instance,
requiring departments of correction or community corrections agencies to provide this information upon sentence completion can help affected individuals
understand their rights and navigate these processes.
Decreasing the procedural hurdles and streamlining processes—such as
mitigating the costs and time associated with various forms of relief—are also
necessary to improve the ability of unrepresented individuals unfamiliar with
court procedures to access the relief. For example, allowing for presumptive or
automatic expungement or sealing of certain records can reduce transaction
costs for individuals as well as for the court system. Furthermore, excessively
long waiting periods and unrealistic criteria which can present significant
obstacles to relief should be reduced. Finally, courts should make pro se instructions and forms readily available and user-friendly, perhaps also supplying
knowledgeable clerks available to assist one or two days a week, or even during
an occasional evening or Saturday.
ESTABLISH CLEAR STANDARDS FOR AND OFFER
INCENTIVES TO THIRD-PARTY DECISION MAKERS
Because employers, housing bodies, and educational institutions often make
decisions every day based on an individual’s criminal history without necessarily
knowing the full meaning of that history and its safety implications, clear standards of how criminal histories should be considered are necessary to help ensure
that collateral consequences are only imposed when they further public safety,
are used as fairly as possible, and actually serve the public’s interest. There is also
a great need for increased transparency on how decisions are made in all areas.
Governing bodies, associations, and others must promote full understanding of
how and when collateral consequences can permissibly impact decision making
and implementing mechanisms to appeal adverse decisions based on criminal
history further ensures fairness, safeguards individuals’ due process rights, and
provides an additional opportunity to monitor compliance.
The housing, employment, and educational contexts are critical areas in
which clear and enforceable standards for decision makers are badly needed. As
such, recommendations specific to these contexts are discussed below.
>>Employment. Despite what is known about the benefit of employment in
reducing an individual’s likelihood of reoffending, biases against individuals with criminal records, fear of liability, ignorance about the meaning or
implications of those records, and inadequate guidance for when and how
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VERA INSTITUTE OF JUSTICE
37
records should be used in decision making all contribute to preventingmany employers from hiring qualified and worthy individuals. Employers
need clear guidance about how to use criminal history information, about
their liability and measures to protect themselves, and both incentives and
enforceable guidelines for using an individual’s criminal history in their
decision making.77
>>Housing. While it is understandable that landlords and other housing providers want to keep their premises safe, properly used, and paid for, a lack
of relevant guidelines creates the risk of housing denials based solely on the
blanket use of criminal records. Housing regulations that clarify when use
of an individual’s criminal history is permissible and reversing policies that
make individuals with criminal records presumptively ineligible for public
housing (in addition to other social benefits) ensures that individuals are
able to access an important safety net when they need it most.
>>Education. Federal policies on campus crime reporting and a recent spotlight on sexual assault on campuses have doubtless made educational institutions wary and careful in their admissions policies. This persists despite
an absence of empirical evidence supporting the notion that individuals
with criminal histories pose greater risks to on-campus safety.78 Policymakers can assist these institutions by creating well-informed guidelines regarding when and how educational institutions can use criminal history in
admissions determinations, and require that these institutions document
their compliance with them. Such guidance would also offer protection to
institutions that can demonstrate that they complied. For example, in the
fall of 2014 New York State Attorney General Eric T. Schneiderman reached
an agreement with three New York colleges that prohibits inquiries on
arrest history or convictions that were sealed or expunged. Moreover, use
of criminal convictions to disqualify candidates is only permitted where
the conviction indicates a public safety threat or implicates the student’s
academic program and responsibilities.79
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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
085
PUBLIC HOUSING
One of the most challenging tasks for a person with a criminal record to
accomplish can be finding a place to live. In recent years, at least four
states have passed legislation aimed at making it easier for individuals
with criminal convictions to obtain housing. Vermont SB 291 (2014) establishes transitional housing for prisoners reentering the community.
Connecticut SB 364 (2014) requires state agencies to establish housing
initiatives to provide affordable housing to vulnerable groups, including
community-supervised offenders with mental health needs. California SB
1021 (2012) requires the Department of Corrections to create a supportive housing program that provides wraparound services, including housing location services and rental subsidies, to mentally ill parolees at risk
of homelessness. Finally, Kentucky HB 463 (2011) ensures that a variety
of housing arrangements shall be approved for parolees. Under current
law, parolees in Kentucky being released to a nonresidential facility must
obtain “appropriate” housing. This law specifies that the Department
of Corrections must approve any form of acceptable housing, including
apartments, homeless shelters, halfway houses, and, if the parolee is a
student, college dormitories.
Most individuals with criminal histories, however, do not have access to
transitional housing programs like those mentioned above, and many
simply want to return home to their families, some of whom reside in public housing developments. Public housing developments operate under
a complex set of rules, including requirements by the U.S. Department of
Housing and Urban Development (HUD) and policies of the local public housing authority as well as third-party management companies with
whom housing authorities contract. In some cities, local ordinances are
also in play. Despite public perception to the contrary, HUD only prohibits
access to public housing for people with two types of convictions: those
convicted for production of methamphetamine on federally-assisted
housing and lifetime sex offender registrants. Although HUD also prohibits access to people who have been evicted for drug-related criminal
activity in the previous three years, this is not an absolute ban and can be
waived with proof of completed drug treatment. Beyond these specific
requirements, it is up to each public housing authority to determine how
criminal convictions can be dealt with when screening housing applicants.
With people leaving prisons in ever-growing numbers, efforts are being
made to expand access to public housing. In 2011, HUD explicitly encouraged housing authorities to utilize their discretion around tenant selection criteria to better serve people returning to public housing after a
period of incarceration.a HUD is currently planning to issue further guid-
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39
ance on how public housing authorities consider criminal convictions in
tenant selection. HUD is also expected to encourage housing authorities to consider conviction but not arrest records when screening applicants and to examine serious parole violations but not technical parole
violations. HUD is also expected to direct housing authorities to move
away from blanket bans on certain types of convictions and to conduct,
instead, individual assessments of applicants with convictions. Those assessments may include looking at a person’s track record while incarcerated and after release, employment history, completion of treatment
programs, and other factors known to help promote successful reentry.b
In the meantime, a number of housing authorities have decided not to
wait for additional guidance from HUD, and, if successful, their efforts have
the potential to inform how housing authorities across the country treat
people with criminal convictions. Some are running new programs to help
people with criminal histories access public housing (e.g., Baltimore, Chicago, and New York City), while others have well-established programs
with successful track records (e.g., Oakland, CA and Burlington, VT).c
>>Chicago Housing Authority launched a pilot program for 30
people who have completed a year of case management at one of
three participating service providers. Providers issue a certificate to
participants, which they can use as proof of mitigation of circumstances, and continue to work with them for an additional year. The
pilot will serve people with families in public housing developments
as well as in Section 8 housing, as well as people who wish to move
into their own subsidized unit.d A similar pilot is underway with the
Cook County Housing Authority.e
>>New York City Housing Authority (NYCHA) launched a pilot program managed by the Vera Institute of Justice in 2013 for 150 people, ages 16 and over, who have been released from a correctional
setting within the last three years and want to move in with family
members currently residing in NYCHA apartments.f If approved,
participants move in under temporary permission for two years and
any income they generate does not impact the family’s rent. They
must also participate in case management services for a minimum
of six months. After two years, families can apply to have them added to the lease or participants can apply for their own units without
their criminal conviction record being considered.
>>Oakland Housing Authority’s (OHA) Maximizing Opportunities
for Mothers to Succeed (MOMS) Program, in operation now for 13
years, connects mothers in medium or minimum security at the Santa
Rita jail to housing provided by OHA. To be eligible, mothers must
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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
087
complete a program in the jail and continue with case management
services once they return to the community. The housing authority has
11 units set aside for program participants. At the conclusion of the
approximately 12-month program, women who successfully meet their
programmatic goals and lease requirements can apply for permanent
housing and their prior conviction will not be held against them. The
program is planning to expand to 30 units and will include some units
for fathers leaving jail.g
Still other housing authorities are reviewing their broader tenant selection
criteria. For example, in July 2014, the San Francisco Housing Authority
(SFHA) modified its Admission and Continued Occupancy Policy to limit
criminal record reviews to those within the past five years of an application and will only screen for drug-related convictions and violent criminal
activity.h In addition, cities are passing ordinances following the “ban the
box” approach in which criminal background checks can only be run once
a person is deemed qualified for housing. For example, the San Francisco
Fair Chance Ordinance, in effect since August 2014, prohibits the examination of criminal conviction records that are more than seven years old and
requires the individual assessment of only those recent convictions that
are directly related to the safety of persons or property in public housing.i
Similar ordinances have been passed in other cities, including Newark, NJ.j
a
Letter dated June 17, 2011 from Shaun Donovan to Public Housing Authorities. Available at
http://nhlp.org/files/Rentry%20letter%20from%20Donovan%20to%20PHAs%206-17-11.pdf.
b
Some of these programs are limited to traditional public housing, others include the Housing
Choice Voucher Program, commonly referred to as Section 8.
See http://www.vera.org/blog/ron-ashford-department-housing-urban-development-hud.
c
For more on the Burlington Housing Authority program, see
http://burlingtonhousing.org/index.asp?SEC=6739A171-53A1-4137-92E8-60EC67AD46C8&Type=B_BASIC.
d
The Chicago Tribune, “Proposal would ease CHA ban on ex-offenders,” March 28, 2014, http://
articles.chicagotribune.com/2014-03-28/news/ct-cha-ex-offender-housing-met-20140328_1_
ex-offenders-charles-woodyard-cha-properties
e
Chicago Coalition for the Homeless, “Chicago Housing Authority Board To Pilot Select Ex-offender Access Housing,” November, 18, 2014,
http://www.chicagohomeless.org/chicago-housing-authority-adopts-cch-pilot-allowingselect-ex-offenders-access-housing/
f
The Vera Institute of Justice, “NYCHA Family Reentry Pilot: Reuniting Families in New York City
Public Housing,”
http://www.vera.org/project/nycha-family-reentry-pilot-reuniting-families-new-york-city-public-housing
g
Centerforce, “MOMS Program: Maximizing Opportunities for Mothers to Succeed,”
http://www.centerforce.org/programs/moms-maximizing-opportunities-for-mothers-to-succeed/
h
The San Francisco Housing Authority, “Proposed Admissions and Continued Occupancy Policy,”
Revised July 2014, http://sfha.org/ca001a01.pdf, 54.
i
The language in the ordinance defines “directly-related” as: “whether the conduct has a direct
and specific negative bearing on the safety of persons or property, given the nature of the housing,
whether the housing offers the opportunity for the same/similar offense to occur, whether circumstances leading to the conduct will recur in the housing, and whether supportive services that might
reduce the likelihood of a recurrence are available on-site.” San Francisco Fair Chance Ordinance,
http://sf-hrc.org/article-49-san-francisco-police-codefair-chance-ordinance.
j
For information about the ordinance in Newark, NJ, see
https://newark.legistar.com/LegislationDetail.aspx?ID=1159554&GUID=6E9D1D83-C8D7-4671-931F-EE7C8B2F33FD
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41
RESTRICT ACCESS TO AND USE OF CRIMINAL HISTORY
INFORMATION
To combat the over-accessibility of criminal history information and inaccurate reporting, companies that publish criminal history information must be
required to implement mechanisms that ensure the accuracy of their records
and respond to complaints.80 Commercial services should also be prohibited
from reporting criminal history unrelated to convictions. In order to encourage
appropriate use of criminal records by decision makers, particularly employers, several mechanisms can be considered. Employers can be prohibited from
checking criminal history until after a conditional offer has been made. Alternatively, employers can be prohibited from considering criminal history information that did not lead to a conviction.81 Transparency can also be ensured—for
example, Massachusetts SB 2583 (2010) requires employers that regularly conduct background checks to maintain a written policy about their use of criminal
records.82 Decision makers should also be encouraged to use state background
check systems over commercial databases. Incentives can be used to help ensure compliance—for example, state agencies can consider background check
policies when making contracting decisions.83
EXPAND THE USE OF FRONT-END RELIEF MECHANISMS
Front-end relief mechanisms can minimize an individual’s exposure to certain
collateral consequences by limiting the extent of an individual’s contact with the
criminal justice system. Remedies can include deferred adjudication schemes or
diversion programs, where the court process is halted and adjudication or sentencing is withheld until after a certain amount of time has passed and/or certain
requirements (such as completion of a program and good behavior) have been met,
ultimately resulting in a dismissal or a vacated conviction or guilty plea. Automatic
expungement or sealing mechanisms following a convicted individuals’ completion of certain requirements are also mechanisms for providing front-end relief
to collateral consequences. As these mechanisms are often more accessible and
efficient than their back-end counterparts, these remedies should be extended to
include broader categories of offenders and implemented more widely.
INVOLVE PROSECUTORS AND JUDGES IN REFORM EFFORTS
Policymakers must ensure that judicial and prosecutorial discretion does not
undercut the impact of their reforms. For example, a locality may create or
expand deferred adjudication or diversion programs to reduce the number of
individuals subject to collateral consequences. However, unless prosecutors and
judges elect to utilize the schemes, these reforms would ultimately be ineffectual. To encourage these critical decision makers to support reforms on the
ground, it is important that policymakers involve district attorneys and judges
from the outset in reform planning and later in the implementation and evaluation of new policies and practices.
42
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
089
Conclusion
Collateral consequences of criminal convictions are legion and present significant and often insurmountable barriers for people with criminal histories to
housing, public benefits, employment, and even certain civil rights well after
sentence completion. The breadth of legislative reforms over the last six years
to mitigate their impact suggests that policymakers have begun to recognize
that many post-punishment penalties are too broadly applied and have questionable public safety benefits. Indeed, the reform efforts discussed in this
report seem to reflect a growing acceptance among leaders across the political
spectrum—and with the public at large—that rehabilitation, treatment, and
education should be important goals of the criminal justice system. Research
shows that recidivism is reduced and communities are made safer not by rendering the millions of people with criminal records second class citizens, but by
supporting their transition and reintegration into the community.
While some recent reforms of collateral consequences are narrow in scope,
difficult to access or enforce, and easily thwarted, the recognition that people
who are caught up in the criminal justice system need assistance is a significant shift in perspective from the tough-on-crime policies of the past forty
years. But when viewed collectively, these reforms indicate a criminal justice
system on the cusp of embracing reentry and reintegration as guiding principles, and a society which accepts people with criminal records as full members
capable of contributing to their families and communities.
090
VERA INSTITUTE OF JUSTICE
43
Appendix A
COLLATERAL CONSEQUENCES REFORM LEGISLATION BY YEAR, 2009-2014
STATE
2009
2010
2011
ALABAMA
ARKANSAS
2
CALIFORNIA
1
1
COLORADO
1
1
CONNECTICUT
1
DELAWARE
1
3
DISTRICT OF COLUMBIA
FLORIDA
1
GEORGIA
HAWAII
IDAHO
ILLINOIS
3
INDIANA
1
1
IOWA
KENTUCKY
1
LOUISIANA
2
MARYLAND
MASSACHUSETTS
1
MICHIGAN
MINNESOTA
1
MISSISSIPPI
1
MISSOURI
NEBRASKA
NEVADA
NEW HAMPSHIRE
NEW JERSEY
1
1
NEW MEXICO
NEW YORK
1
2
2
NORTH CAROLINA
2
OHIO
1
OKLAHOMA
OREGON
1
RHODE ISLAND
1
SOUTH CAROLINA
SOUTH DAKOTA
1
1
TENNESSEE
TEXAS
1
UTAH
1
VERMONT
WASHINGTON
3
WEST VIRGINIA
WYOMING
TOTAL
44
1
5
18
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
20
091
2012
2013
2014
TOTAL
1
1
2
2
4
1
2
6
11
1
5
3
11
1
2
3
9
1
2
1
1
1
1
1
1
1
1
2
4
2
1
1
3
4
4
15
1
1
3
6
1
1
1
2
2
4
10
1
1
1
3
1
1
1
1
1
3
1
1
2
3
1
1
2
1
2
4
5
3
5
1
1
1
2
5
5
1
2
1
1
1
2
2
3
1
1
2
2
1
2
6
1
1
1
7
3
6
1
1
1
5
1
19
3
1
41
1
2
52
155
092
VERA INSTITUTE OF JUSTICE
45
Appendix B
COLLATERAL CONSEQUENCES REFORM LEGISLATION BY STATE, 2009–2014
Alabama
Arkansas
California
Colorado
Connecticut
46
HB 494
2013
SB 108
2014
Delaware
HB 169
2010
HB 177
2011
SB 12
2011
HB 1608
2011
SB 59
2011
SB 806
2011
HB 285
2012
HB 1470
2013
HB 10
2013
HB 1638
2013
HB 134
2014
HB 167
2014
SB 217
2014
B19- 889
2012
B20-642
2014
Florida
SB 146
2011
Georgia
HB 1176
2012
SB 1055
2010
AB 1384
2011
AB 2371
2012
AB 218
2013
AB 720
2013
AB 1468
2014
AB 1650
2014
AB 2234
2014
AB 2396
2014
HB 349
2013
SB 1027
2014
SB 365
2014
SB 1384
2014
SB 845
2014
HB 1023
2010
HB 2515
2012
HB 1167
2011
HB 1059
2013
HB 1263
2012
HB 1082
2013
Idaho
S 1151
2013
HB 1156
2013
SB 123
2013
Illinois
HB 5214
2010
SB 229
2013
SB 760
2010
SB 250
2013
SB 3295
2010
HB 1047
2014
HB 297
2011
SB 129
2014
HB 5771
2012
SB 206
2014
SB 3349
2012
SB 3458
2012
District Of Columbia
Hawaii
HB 5207
2010
HB 1548
2013
SB 153
2014
HB 3010
2013
HB 3061
2013
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
093
Illinois
Indiana
HF 1301
2009
2014
SF 523
2013
HB 5701
2014
HF 2576
2014
HB 5815
2014
SB 978
2014
Mississippi
HB 160
2010
HB 1211
2011
Missouri
SB 118
2013
HB 1033
2012
HB 1665
2014
HB 1482
2013
SB 680
2014
HB 1268
2014
HB 1155
2014
Nebraska
LB 907
2014
SB 236
2014
Nevada
SB 169
2013
SB 395
2013
HB 1533
2010
HB 496
2014
SB 1659
2013
HB 4304
Iowa
SF 383
2014
Kentucky
HB 463
2011
Louisiana
Maryland
Massachusetts
Michigan
Minnesota
New Hampshire
HB 102
2010
HB 1137
2014
SB 927
2010
HB 1144
2014
HB 295
2012
HB 1368
2014
SB 403
2012
HB 219
2013
A 4201
2009
SB 71
2013
A 3598
2013
HB 8
2014
AB 1999
2014
HB 55
2014
AB 2295
2014
HB 505
2014
AB 8071
2014
HB 1273
2014
New Mexico
SB 254
2010
New York
AB 8178
2009
S 56-B
2009
AB 5462
2010
AB 9706
2010
SB 3553
2014
HB 708
2012
SB 4
2013
HB 79
2014
SB 2583
HB 5162
2010
New Jersey
2012
094
VERA INSTITUTE OF JUSTICE
47
North Carolina
Ohio
Oklahoma
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
48
HB 641
2011
SB 397
HB 21
2010
2011
SB 201
2012
HB 1023
2012
HB 33
2013
SB 33
2013
HB 15
2014
SB 91
2013
HB 137
2014
HB 145
2014
Utah
HB 86
2011
SB 337
2012
Vermont
HB 413
2014
SB 1914
2014
Washington
HB 1793
2011
SB 5168
2011
HB 3376
2011
SB 5423
2011
HB 2627
2013
HB 1284
2013
HB 1651
2014
West Virginia
HB 4521
2012
Wyoming
SF 88
2011
SF 53
2014
HB 7923
2010
SB 357
2013
SB 358
2013
HB 3184
2013
SB 900
2014
HB 1123
2009
HB 1105
2010
HB 2865
2012
HB 1742
2014
SB 276
2014
HB 351
2011
HB 798
2013
HB 1188
2013
HB 1659
2013
SB 107
2013
SB 369
2013
SB 1289
2013
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
095
Appendix C
DISCRETE COLLATERAL CONSEQUENCES REFORM LEGISLATION, 2009-2014
LA HB 219 (2013)
Restores Adoption Rights
CO SB 229 (2013)
Removes from Sex Offender Registry
IN HB 1155 (2014)
Protects Expungement Rights in Plea Deals
DE HB 10 (2013)
NY SB 3553 (2014)
Safeguards the Right to Vote
WA SB 5168 (2011)
NV SB 169 (2013)
Mitigates Immigration Consequences
NY AB 5462 (2010)
WA HB 1284 (2013)
Restores Parental Rights
CA AB 720 (2013)
IL SB 760 (2010)
Ensures Access to Health Care
AR SB 806 (2011)
NC SB 91 (2013)
Ensures Access to Education
LA HB 102 (2010)
WA SB 5423 (2011)
IN HB 1155 (2014)
Provides Financial Relief
NY AB 8178 (2009)
OH SB 337 (2012)
WV HB 4521 (2012)
Provides Child Support Relief
WA HB 1793 (2011)
CO SB 123 (2013)
UT HB 33 (2013)
LA HB 8 (2014)
Expands the Effect of Pardon
SD HB 1123 (2009)
DE SB 12 (2011)
CA AB 1468 (2014)
IN HB 1268 (2014)
MO SB 680 (2014)
NJ AB 2295 (2014)
OH SB 337 (2012)
GA HB 349 (2013)
DE SB 217 (2014)
GA SB 365 (2014)
IL HB 4304 (2014)
IN SB 236 (2014)
Removes Ineligibility from
Public Assistance Programs
NH HB 496 (2014)
UT HB 15 (2014)
UT HB 137 (2014)
Reinstates
Driving Privileges
096
VERA INSTITUTE OF JUSTICE
49
Appendix D
COLLATERAL CONSEQUENCES REFORM LEGISLATION BY REFORM TYPE,
EXPUNGEMENT OR SEALING REMEDIES
STATE
EXTENDS
ELIGIBILITY
REDUCES
WAITING
PERIODS
EXTENDS TO
CLARIFIES THE
JUVENILE
EFFECT
RECORDS
ALTERS THE
BURDEN OF
PROOF
CERTIFICATES OF
RECOVERY
OFFENSE
DOWNGRADES
SB 108 (2014)
HB 494 (2013)
SB 108 (2014)
ALABAMA
ARKANSAS
CALIFORNIA
COLORADO
HB 1608 (2011)
HB 1638 (2013)
HB 1638 (2013)
AB 1384 (2011)
AB 2371 (2012)
SB 123 (2013)
SB 129 (2014)
SB 206 (2014)
HB 1167 (2011)
HB 1082 (2013)
HB 1167 (2011)
HB 1156 (2013)
SB 123 (2013)
SB 206 (2014)
HB 1608 (2011)
HB 1638 (2013)
HB 1082 (2013)
SB 806 (2011)
HB 1167 (2011)
SB 229 (2013)
HB 1608 (2011)
HB 1470 (2013)
AB 2371 (2012)
AB 2371 (2012)
SB 250 (2013)
HB 1082 (2013)
HB 1156 (2013)
SB 123 (2013)
SB 206 (2014)
SB 153 (2014)
CONNECTICUT
HB 169 (2010)
SB 59 (2011)
DELAWARE
DISTRICT OF
COLUMBIA
BUILDS
RELIEF INTO
THE PROCESS
B19-889 (2012)
HB 169 (2010)
HB 177 (2011)
HB 285 (2012)
HB 134 (2014)
B19-889 (2012)
B19-889 (2012)
FLORIDA
GEORGIA
HAWAII
HB 1176 (2012)
HB 365 (2014)
HB 2515 (2012)
S 1151 (2013)
IDAHO
ILLINOIS
INDIANA
SB 3295 (2010)
SB 3458 (2012)
HB 1548 (2013)
HB 3061 (2013)
HB 5815 (2014)
HB 1211 (2011)
HB 1482 (2013)
SB 978 (2014)
HB 1155 (2014)
HB 1033 (2012)
HB 1482 (2013)
HB 1155 (2014)
SB 927 (2010)
SB 403 (2012)
HB 55 (2014)
HB 55 (2014)
HB 1033 (2012)
SB 71 (2013)
HB 708 (2012)
HB 79 (2014)
MARYLAND
SB 2583 (2010)
MASSACHUSETTS
HB 5162 (2012)
MICHIGAN
MISSISSIPPI
HB 5214 (2010)
SB 3349 (2012)
HB 3010 (2013)
HB 463 (2011)
KENTUCKY
MINNESOTA
HB 5771 (2012)
SF 383 (2014)
IOWA
LOUISIANA
HB 1176 (2012)
HF 2576 (2014)
HF 2576 (2014)
HF 2576 (2014)
HB 160 (2010)
097
2009-2014
AMELIORATES EMPLOYMENT-RELATED COLLATERAL CONSEQUENCES
BAN THE BOX
REDUCES
LICENSING
RESTRICTIONS
REDUCES
EMPLOYERS' RISK
INCENTIVIZES
EMPLOYERS
ACCESS TO INFORMATION
PROVIDES
INCREASED
INFORMATION TO
OFFENDERS
RESTRICTS
INFORMATION
AVAILABLE TO
THIRD PARTIES
STATE TASK
FORCES
SB 806 (2011)
AB 1650 (2014)
AB 218 (2013)
AB 2396 (2014)
SB 1384 (2014)
HB 1263 (2012)
SB 206 (2014)
AB 1650 (2014)
HB 1023 (2010)
DISCRETE
COLLATERAL
CONSEQUENCES
SB 806 (2011)
SB 1055 (2010)
AB 2243 (2014)
SB 1027 (2014)
AB 720 (2013)
AB 1468 (2014)
SB 123 (2013)
SB 206 (2014)
HB 1047 (2014)
SB 123 (2013)
SB 229 (2013)
HB 5207 (2010)
HB 167 (2014)
SB 59 (2011)
B20-642 (2014)
HB 167 (2014)
B19-889 (2012)
SB 12 (2011)
HB 10 (2013)
SB 217 (2014)
B20-642 (2014)
SB 146 (2011)
SB 146 (2011)
HB 365 (2014)
HB 1176 (2012)
SB 845 (2014)
HB 349 (2013)
SB 365 (2014)
HB 1059 (2013)
HB 5701 (2014)
SB 1659 (2013)
HB 1033 (2012)
HB 1482 (2013)
HB 295 (2012)
HB 1273 (2014)
HB 297 (2011)
SB 760 (2010)
HB 4304 (2014)
HB 1482 (2013)
HB 1033 (2012)
HB 1155 (2014)
HB 1268 (2014)
SB 236 (2014)
HB 505 (2014)
HB 55 (2014)
HB 102 (2010)
HB 219 (2013)
HB 8 (2014)
SB 4 (2013)
SB 2583 (2010)
SB 2583 (2010)
HF 1301 (2009) SF
523 (2013)
HF 2576 (2014)
SB 2583 (2010)
SB 2583 (2010)
SB 2583 (2010)
HF 2576 (2014)
098
Appendix D
COLLATERAL CONSEQUENCES REFORM LEGISLATION BY REFORM TYPE,
EXPUNGEMENT OR SEALING REMEDIES
STATE
MISSOURI
EXTENDS
ELIGIBILITY
REDUCES
WAITING
PERIODS
CLARIFIES THE
EFFECT
EXTENDS TO
JUVENILE
RECORDS
ALTERS THE
BURDEN OF
PROOF
CERTIFICATES OF
RECOVERY
OFFENSE
DOWNGRADES
HB 1665 (2014)
BUILDING RELIEF
INTO
THE PROCESS
SB 118 (2013)
NEBRASKA
SB 169 (2013)
NEVADA
NEW HAMPSHIRE
HB 1137 (2014)
AB 8071 (2014)
NEW JERSEY
A 3598 (2013)
NEW MEXICO
S 56-B (2009)
S 56-B (2009)
S 56-B (2009)
NEW YORK
NORTH CAROLINA
OHIO
HB 1023 (2012)
SB 337 (2012)
SB 397 (2011)
SB 91 (2013)
SB 337 (2012)
HB 641 (2011)
SB 337 (2012)
HB 86 (2011)
SB 337 (2012)
SB 1914 (2014)
OKLAHOMA
OREGON
SB 397 (2011)
HB 3376 (2011)
HB 2627 (2013)
SB 358 (2013)
RHODE ISLAND
SOUTH CAROLINA
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
HB 7923 (2010)
HB 3184 (2013)
HB 1105 (2010)
HB 1105 (2010)
HB 2685 (2012)
HB 1742 (2014)
SB 276 (2014)
HB 351 (2011)
HB 351 (2011)
HB 21 (2010)
SB 201 (2012)
HB 33 (2013)
HB 21 (2010)
HB 413 (2014)
VERMONT
HB 1793 (2011)
HB 1651 (2014)
WASHINGTON
WEST VIRGINIA
WYOMING
SF 88 (2011)
099
2009-2014
AMELIORATING EMPLOYMENT-RELATED COLLATERAL CONSEQUENCES
BAN THE BOX
REDUCES
LICENSING
RESTRICTIONS
REDUCES
EMPLOYERS' RISK
INCENTIVIZES
EMPLOYERS
ACCESS TO INFORMATION
PROVIDES
INCREASED
INFORMATION TO
OFFENDERS
RESTRICTS
INFORMATION
AVAILABLE TO
THIRD PARTIES
HB 1665 (2014)
STATE TASK
FORCES
DISCRETE
COLLATERAL
CONSEQUENCES
SB 680 (2014)
LB 907 (2014)
HB 1368 (2014)
AB 1999 (2014)
SB 395 (2013)
SB 169 (2013)
HB 1533 (2010)
HB 1144 (2014)
HB 496 (2014)
A 4201 (2009)
AB 2295 (2014)
SB 254 (2010)
AB 9706 (2010)
SB 91 (2013)
SB 33 (2013)
HB 641 (2011)
SB 337 (2012)
HB 86 (2011)
SB 337 (2012)
AB 9706 (2010)
AB 9706 (2010)
AB 8178 (2009)
AB 5462 (2010)
SB 3553 (2014)
SB 91 (2013)
SB 337 (2012)
SB 337 (2012)
SB 357 (2013)
SB 900 (2014)
HB 1123 (2009)
SB 276 (2014)
HB 798 (2013) HB
1659 (2013)
HB 1188 (2013)
SB 369 (2013)
SB 107 (2013)
SB 1289 (2013)
HB 145 (2014)
HB 413 (2014)
HB 33 (2013)
HB 15 (2014)
HB 137 (2014)
HB 413 (2014)
HB 1793 (2011)
HB 1793 (2011)
SB 5168 (2011)
SB 5243 (2011)
HB 1284 (2013)
HB 4521 (2012)
SF 53 (2014)
100
ENDNOTES
1 Indeed, in describing the stigma caused by a criminal conviction, Chief
Justice Earl Warren once observed that a felony conviction “imposes
a status upon a person which not only makes him vulnerable to future
sanctions through new civil disability statutes, but which also seriously
affects his reputation and economic opportunities.” See Parker v. Ellis,
362 U.S. 574, 593-94 (1960) (Warren, CJ, Black, Douglas & Brennan, JJ,
dissenting).
6 The Sentencing Project, A Lifetime of Punishment: The Impact of the
Felony Drug Ban on Welfare Benefits (Washington, DC: 2013), 2, Table 1.
The programs involved are the Temporary Assistance to Needy Families
(TANF) program and the Supplemental Nutrition Assistance Program
(SNAP)—more commonly referred to as “food stamps.” As of 2014, 13
states have fully opted out of such a ban regarding TANF benefits and 16
states have fully opted out of the ban regarding SNAP benefits.
2 Collateral consequences are civil consequences that arise from criminal
convictions. For a definition, see ABA Standards for Criminal Justice:
Collateral Sanctions and Discretionary Disqualification of Convicted
Persons, 3rd ed. (2004) Standard 19-1.1. For information regarding
the severity and reach of collateral consequences, see Wayne Logan,
“Informal Collateral Consequences,” Washington Law Review 88 (2013):
1104, noting that the effect of the collateral consequences can amount
to a greater punishment than the original sentence. For information
on how collateral consequences extend to an individual’s family, see
Donald Braman and Jenifer Wood, “From One Generation to the Next:
How Criminal Sanctions Are Reshaping Family Life in Urban America,”
in Travis and Michelle Waul, eds., Prisoners Once Removed: The Impact
of Incarceration and Reentry on Children, Families, and Communities
(Washington, DC: Urban Institute Press, 2003), 171-188; Barbara Mulé
and Michael Yavinsky, “Saving One’s Home: Collateral Consequences
for Innocent Family Members,” New York University Review of Law
and Social Change 30 (2006): 689-699; Creasie Finney Hairston,
Ph.D., “Families, Prisoners, and Community Reentry: A Look at Issues
and Programs,” in Vivian L. Gadsden, ed., Heading Home: Offender
Reintegration into the Family 20-24 (Lanham, Maryland: American
Correctional Association, 2003). Regarding collateral consequences
impact on the community, see Shelli Balter Rossman, “Building
Partnerships to Stengthen Offenders, Families, and Communities,” in
Travis and Waul, 2003, pp. 322-342. For collateral consequences’ impact
on African American communities in particular, see Dorothy E. Roberts,
“The Social and Moral Cost of Mass Incarceration in African American
Communities,” Stanford Law Review 56 (2004): 1291-1305. See also
Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes
Disadvantaged Neighborhoods Worse (Buckingham, England: Open
University Press, 2009). Regarding the impact of criminal conviction on
an individual’s economic prospects, see Collateral Costs: Incarceration’s
Effect on Economic Mobility, (Washington, DC: The Pew Charitable
Trusts, 2010).
7 See note 9 for case law to this effect. Regarding the determination that
collateral consequences are “civil,” the Supreme Court has laid out
several tests to determine when a penalty is criminal or civil. See for
example, Trop v. Dulles, 356 U.S. 86, 96 (1958) or Kennedy v. MendozaMartinez, 372 U.S. 144, 168-69 (1963). The controlling test is a twopronged inquiry set forth in U.S. v. Ward, 448 U.S. 242, 248-250 (1980),
which instructs courts to first determine legislative intent as to whether
a sanction is to be classified as civil or criminal; and second, if civil, to
employ a seven-factor analysis articulated in Kennedy to determine
whether the purpose or effect of the sanction is so punitive as to be
considered criminal. Note that only the “clearest proof” on the second
inquiry can override legislative intent. See Hudson v. U.S., 522 U.S. 93,
100 (1997). Other dispositive factors that courts have considered to
determine whether a consequence is criminal or collateral (and therefore
civil) include whether the court has the power to impose or limit the
collateral consequence at issue, or, conversely, if it is beyond the control
and responsibility of the court. See for example, El-Nobani v. United
States, 287 F.3d 417, 421 (6th Cir. 2007). For further discussion of the
jurisprudence that has developed around collateral consequences
generally see, Margaret Colgate Love, “Collateral Consequences After
Padilla v. Kentucky: From Punishment to Regulation,” St. Louis Public Law
Review 31, no. 1 (2011): 87, 96-101; and Michael Pinard, “An Integrated
Perspective on the Collateral Consequences of Criminal Convictions
and Reentry Issues Faced by Formerly Incarcerated Individuals,” Boston
University Law Review 86 (2006): 639-647.
3 Collateral consequences are not limited to felony convictions. For a
comprehensive discussion of the negative consequences of misdemeanor
convictions, see Jenny Roberts, “Crashing the Misdemeanor System,”
Washington and Lee Law Review 70 (2013): 1090–1131. Also see Jenny
Roberts, “Why Misdemeanors Matter: Defining Effective Advocacy in
Lower Criminal Courts,” U.C. Davis Law Review 45 (2011): 277–372; and
Gabriel J. Chin, “The New Civil Death: Rethinking Punishment in the Era
of Mass Conviction,” University of Pennsylvania Law Review 160 (2012):
1789, 1803-1815.
4 Depending on the nature of the felony, an individual with a felony conviction
could face up to a six-year ban from New York public housing programs after
serving their sentence. All convicted felons face at least a three-year ban
from public housing. See the New York City Housing Authority’s Department
of Housing Applications Manual Exhibit F (October 15, 2013) at
reentry.net/ny/library/folder.132960-NYCHA_Public_Housing_Regulations.
For example, if an individual was convicted of a Class D felony in 1998,
was released from prison in 2000, and released from parole on October
1, 2004, he or she would not be eligible for public housing until October
1, 2009—five years after completing the full sentence (i.e., upon
termination of parole supervision).
5 For rules regarding stevedores, see N.Y. Unconsolidated Laws §9821; For rules
regarding real estate agents, see N.Y. Real Prop § 440-a; For rules regarding
bingo operators, see N.Y. Exec. Law, section 435 (2)(c)(l). This bar extends
to bingo callers, see NYCRR § 4820.35. Regarding educational assistance,
individuals convicted of drug offenses are ineligible for further federal student
aid if the offense was committed while the individual was receiving aid. See
https://studentaid.ed.gov/eligibility/criminal-convictions#drug-convictions.
54
8 See Jeremy Travis, “Invisible Punishment: An Instrument of Social
Exclusion,” in Invisible Punishment: The Collateral Consequences of Mass
Imprisonment, edited by Marc Mauer and Meda Chesney-Lind (New York,
NY: The New Press, 2002), 15-17.
9 See for example, Fruchtman v. Kenton, 531 F.2d 946, 949 (9th. Cir.
1976) in which the U.S. Court of Appeals for the Ninth Circuit held that
“collateral consequences flowing from a guilty plea are so manifold
that any rule requiring a district judge to advise a defendant…would
impose an unmanageable burden on the trial judge.” In United States
v. Yearwood, 863 F.2d 6, 8 (4th Cir. 1988), the U.S. Court of Appeals
for the Fourth Circuit decided that requiring defense counsel to advise
defendants on collateral consequences would be similarly burdensome.
Also see ABA Standards for Criminal Justice: Collateral Sanctions
and Discretionary Disqualification of Convicted Persons 3rd ed. (2004)
Standard 19-2.1 Commentary for a discussion on the difficulty of
determining the collateral consequences for a particular offense.
10 Anthony Thompson, “Navigating the Hidden Obstacles to Ex-Offender
Reentry,” Boston College Law Review 45 (2004): 255, 273.
11In Padilla v. Kentucky, 559 U.S. 356, 359 (2010), the Supreme Court
held that a criminal defense lawyer is constitutionally required to advise
a noncitizen client considering a guilty plea that deportation will be
an almost certain result of a guilty plea and conviction. Lower courts
have since considered applying Padilla to other “status-generated
consequences,” such as sex offender registration. For a discussion on this
see Margaret Colgate Love, “Collateral Consequences After Padilla v.
Kentucky: From Punishment to Regulation,” St. Louis Public Law Review
31(1) (2011) 87, 105-111. Also see, Anthony Thompson, “Navigating the
Hidden Obstacles to Ex-Offender Reentry,” Boston College Law Review
45 (2004): 255, 273.
12 For a discussion on the “invisibility” of collateral consequences,
see Jeremy Travis, “Invisible Punishment: An Instrument of Social
Exclusion” in Invisible Punishment: The Collateral Consequences of Mass
Imprisonment, edited by Marc Mauer and Meda Chesney-Lind (New York,
NY: The New Press, 2002) 15-17.
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
101
13 For a discussion about the growth in concern about prisoner reentry and
attendant initiatives, see Michael Pinard, “An Integrated Perspective on
the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals,” Boston University Law Review
86 (2006): 623, 649-658; Michael Pinard, “Reflections and Perspectives
on Reentry and Collateral Consequences,” Journal of Criminal Law
& Criminology 100, no.3 (2010): 1213, 1219-22; Amy L. Solomon, “In
Search of a Job: Criminal Records as Barriers to Employment,” National
Institute of Justice Journal No. 270 (2012): 46, 48. For recent opinion polls
on criminal justice issues see Jill Mizell, An Overview of Public Opinion
and Discourse on Criminal Justice Issues (New York: The Opportunity
Agenda, 2014), 19-23. For example, The Opportunity Agenda found that
69 percent of Americans felt that the criminal justice system “needed
major improvements” or “a complete redesign,” and that nearly half
of Americans believe society is better served by a greater effort to
rehabilitate people convicted of crimes. See Mizell, 20, 23. The report also
cites a Hindelang Criminal Justice Research Center Study finding that, in
2010, 64 percent of respondents reported that their preferred approach to
lowering crime was by adding “more money and effort” to “attacking the
social and economic problems that lead to crime through better education
and job training,” compared to only 32 percent who preferred “more
money and effort” to “deterring crime by improving law enforcement with
more prisons, police, and judges.” In 1990, only 51 percent of respondents
favored the former approach. Ibid. at 24.
14 For research that discusses how employment, education, health, and
housing are critical risk factors of reoffending, see M. Makarios et.
al., “Examining the Predictors of Recidivism Among Men and Women
Released From Prison In Ohio,” Criminal Justice and Behavior 37, no.12
(2010).
15 For remarks in 2011, see Attorney General Eric Holder Letter to State
Attorneys General, April 18, 2011, available at
csgjusticecenter.org/wp-content/uploads/2014/02/Reentry_Council_AG_Letter.pdf.
For remarks in 2014, see Attorney General Eric Holder remarks at the
National Association of Attorneys General Winter Meeting, February 25,
2014, available at
http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-1402251.html.
16 See Attorney General Eric Holder remarks on Criminal Justice Reform at
Georgetown University Law Center, February 11, 2014, available at
http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140211.html.
17 For a contemporaneous example of scholarship underpinning this shift,
see Robert Martinson, “What Works? Questions and Answers About
Prison Reform” The Public Interest 35 (1974): 22, 22-23. For more
background, see Kevin R. Reitz, “The Disassembly and Reassembly of
U.S. Sentencing Practices,” in Sentencing and Sanctions in Western
Countries (Michael Tonry & Richard S. Frase, eds., Oxford University
Press, 2001), 238-244; Bureau of Justice Assistance, National Assessment
of Structured Sentencing (Washington DC: BJA, 1996), 5-18.
18 Kevin R. Reitz, “The Disassembly and Reassembly of U.S. Sentencing
Practices,” 238-244. For an overview of the expanding penal code, see
Douglas Husak, Overcriminalization: The Limits of The Criminal Law
(Oxford, UK: Oxford University Press, 2009); also see Stephen F. Smith,
“Overcoming Overcriminalization,” Journal Of Criminal Law & Criminology
102, no.3 (2012): 537, 538-543 and Paul J. Larkin, “Public Choice Theory and
Overcriminalization,” Harvard Journal of Law & Public Policy 36, no.2 (2013):
715, 723-735. For example, on the federal level, the Congressional Research
Service reported that between 2008 and 2013, Congress added 439
offenses to the federal criminal code. See Memorandum to Crime, Terrorism,
Homeland Security & Investigations Subcommittee (June 23, 2014) at
http://freebeacon.com/wp-content/uploads/2014/08/CRS-Report-UpDated-New-Crimesfinal-1.pdf. For a description of zero-tolerance policing
practices in New York City, see Jeffrey Fagan and Garth Davies, “Street
Stops and Broken Windows: Terry, Race, and Disorder in New York City,”
Fordham Urban Law Journal 28, no.2 (2000): 457, 470-2 and 475-8; Also see
Jeffrey Fagan, Valerie West and Jan Holland, “Reciprocal Effects of Crime
and Incarceration in New York City Neighborhoods,” Fordham Urban Law
Journal 30, no.5 (2003): 1551, 1563-1566 and K. Babe Howell “Broken Lives
from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance
Policing,” New York University Review of Law & Social Change 33 (2009):
271, 276. For information on the introduction of stiffer penalties, see Ram
Subramanian and Ruth Delaney, Playbook for Change? States Reconsider
Mandatory Sentences (New York: Vera Institute of Justice, 2014), 6.
19 The number of individuals with state criminal history records was 100.5
million. This number was then reduced by 30 percent to account for
individuals who have records in multiple states. The resulting 70.2 million
figure is likely an underestimation due to some states’ policies that do
not require fingerprinting for low-level offenders or that do not include
records of juvenile offenders, and due to the exclusion of individuals
with only federal criminal records. The methodology was replicated
from the one used by Michelle Rodriguez and Maurice Emsellem, 65
Million Need Not Apply: The Case For Reforming Criminal Background
Checks For Employment (New York, NY: The National Employment
Law Project, 2011), endnote 2. For the number of individuals under
correctional supervision in 1985, see Bureau of Justice Statistics, Survey
of State Criminal History Information Systems, 1985 (Washington,
DC: BJA, 1987). For figures reporting on 2012, see Bureau of Justice
Statistics, Survey of State Criminal History Information Systems, 2012
(Washington, DC: BJA, 2014), Table 1. See also Lauren E. Glaze and
Erinn J. Herberman, Correctional Populations in the United States, 2012
(Washington, DC: Bureau of Justice Statistics, 2013) Table 2. For data
on how the prisoner reentry population has increased in recent years,
see Christy A. Visher and Jeremy Travis, “Life on the Outside: Returning
Home after Incarceration,” The Prison Journal 91 (2011): 102S.
20 For the prevalence of arrest histories, see Robert Brame et al.,
“Cumulative Prevalence of Arrest From Ages 8 to 23 in a National
Sample,” Pediatrics 129(1) (2011): 21-27. For the total number of arrests
estimated by the FBI, see John R. Emshwiller, “As Arrest Records Rise,
Americans Find Consequences Can Last a Lifetime,” Wall Street Journal,
August 18, 2014.
21 Margaret Colgate Love, “Starting Over With A Clean Slate: In Praise of
A Forgotten Section Of The Model Penal Code,” Fordham Urban Law
Journal 30, no.5 (2003): 1705, 1716-7.
22 Ben Geiger, “The Case for Treating Ex-Offenders As A Suspect Class,”
California Law Review 94, no.4 (2006): 1191, 1194-1206. Also see
Margaret Colgate Love, “Starting Over With A Clean Slate: In Praise of
A Forgotton Section Of The Model Penal Code,” Fordham Urban Law
Journal 30, no.5 (2003): 1705, 1716-7 and Kathleen M. Olivares et al.,
“The Collateral Consequences of a Felony Conviction: A National Study
of State Legal Codes 10 Years Later,” Federal Probation 60 (1996): 10,
which documents the increase in state disabilities over a ten-year period
between 1986 and 1996.
23 For a discussion of the penological explanations for collateral
consequences see Nora V. Demleitner, “Preventing Internal Exile: The
Need for Restrcitions on Collateral Sentencing Consequences,” Stanford
Law & Policy Review 11 (1999): 153, 159-60.
24 Gabriel J. Chin, “The New Civil Death: Rethinking Punishment in the Era of
Mass Conviction,” University of Pennsylvania Law Review 160 (2012): 1789.
25 See note 2.
26 Michael Pinard, “An Integrated Perspective On The Collateral
Consequences Of Criminal Convictions And Reentry Issues Faced By
Formerly Incarcerated Individuals,” Boston University Law Review
86 (2006): 623, 634-6; Also see Gabriel Chin, “The New Civil Death:
Rethinking Punishment in the Era of Mass Conviction,” University of
Pennsylvania Law Review 160 (2012): 1789, 1799-1802.
27 Wayne A. Logan, “Informal Collateral Consequences,” Washington Law
Review 88 (2013).
28 Regarding the long shadow of a criminal record, see ibid. at 1104-5 and
1107-1109. Regarding technologies impact on the accessibility of criminal
history information, see note 37.
29 For a discussion of how conditions of confinement and community
supervision became more punitive, see Anthony Thompson, “Navigating
the Hidden Obstacles to Ex-Offender Reentry,” Boston College Law
Review 45 (2004): 255, 268-72. For information regarding the number of
releases from state and federal prison, see E. Ann Carson and Daniela
102
VERA INSTITUTE OF JUSTICE
55
Golinelli, Prisoners in 2012: Trends in Admissions and Releases, 19912012 (Washington, DC: Bureau of Justice Statistics, 2013), 4, Table 2.
For information regarding the number of releases from community
supervision, see Laura M. Maruschak and Thomas P. Bonczar, Probation
and Parole in the United States, 2012 (Washington, DC: Bureau of Justice
Statistics, 2013) 6, Table 4 and 9, Table 6. For information regarding the
methodology with which the 2012 jail release number was calculated,
see Todd D. Minton, Jail Inmates at Midyear 2012 – Statistical Tables
(Washington DC: BJS, 2013) 4, 8, 13. In the methodology section, Minton
outlines that jail turnover rates were calculated by adding admissions and
releases and then dividing this number by the average daily population
(ADP). The weekly turnover rate and ADP were obtained from Table 7.
The admissions figure was ascertained by dividing the yearly admissions
total given on page 4 by fifty-two to arrive at a weekly admissions total.
The number of weekly releases was calculated using the aforementioned
formula and by multiplying this number by fifty-two to give the number
of yearly releases. For information regarding prisoner reentry needs and
challenges, see for example, Jeremy Travis, Amy Solomon and Michelle
Waul, From Prison to Home: The Dimensions and Consequences of
Prisoner Reentry (Washington DC: The Urban Institute, 2001) at http://
www.urban.org/UploadedPDF/from_prison_to_home.pdf. For the barriers
facing individuals upon reentry, see note 29; Devah Pager, Marked:
Race, Crime and Finding Work in an Era of Mass Incarceration (Chicago,
IL: University of Chicago Press, 2007), 59; and Talia Sandwick et al.,
Making the Transition: Rethinking Jail Reentry in Los Angeles County
(New York: Vera Institute of Justice, 2013). For information regarding jail
reentry needs and challenges, see Jim Parsons, “Addressing the Unique
Challenges of Jail Reentry,” in Offender Reentry: Rethinking Criminology
and Criminal Justice, edited by Matthew S. Crow and John Ortiz Smykla
(Burlington, MA: Jones & Bartlett Learning, 2014) and Talia Sandwick et
al., Making the Transition: Rethinking Jail Reentry in Los Angeles County
(New York: Vera Institute of Justice, 2013).
30 For research that discusses specific risk factors for reoffending, see for
example, M. Makarios et. al., “Examining the Predictors of Recidivism
Among Men and Women Released From Prison In Ohio,” Criminal Justice
and Behavior 37, no.12 (2010) 1377-1391. Regarding reentry challenges
and needs, see note 29.
31 See Jeffrey Fagan, Valerie West and Jan Holland, “Reciprocal Effects
Effects of Crime and Incarceration in New York City Neighborhoods,”
Fordham Urban Law Journal 30, no.5 (2002): 1551, 1552-1553. Also see
Jeffrey Fagan and Garth Davies, “Street Stops and Broken Windows:
Terry, Race, and Disorder in New York City,” Fordham Urban Law Journal
28, no.2 (2000): 457, 473-4.
32 Regarding recidivism rates, 67.8 percent and 76.6 percent of state
prisoners released in 2005 in 30 states reoffended within three or five years
of release, respectively. See Bureau of Justice Statistics (BJS), Recidivism
of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010
(Washington, DC: BJS, 2014). Between the 2003 Serious and Violent
Offender Reentry Initiative (SVORI) and the 2009 Second Chance Act,
$350 million of federal funding has been allocated to support state and
local programming aimed at improving the reentry outcomes for released
prisoners and other ex-offenders in a variety of different areas— i.e.,
criminal justice, employment, education, health, and housing. As of April
2013, BJA and OJJDP had awarded nearly 500 Second Chance Act grants
to state, local, and tribal government agencies and nonprofit organizations
across 48 states and the District of Columbia, totaling nearly $250 million.
The grantees served more than 11,000 participants in pre-release programs
and nearly 9,500 participants in post-release programs from July 2011 to
June 2012. See National Reentry Resource Center, “The Second Chance
Act: The First Five Years,” April 23, 2013, http://csgjusticecenter.org/nrrc/
posts/the-second-chance-act-the-first-five-years/; and RTI International
and the Urban Institute, The Multi-site Evaluation of SVORI: Summary and
Synthesis (Washington, DC: The Urban Institute, 2009), http://www.urban.org/
uploadedpdf/412075_evaluation_svori.pdf.
33 See for example, Bronx Defenders, Civil Action Practice at http://
www.bronxdefenders.org/our-work/civil-action-practice/. Also see the
organizational and practice description of The Neighborhood Defender
Service of Harlem at http://www.ndsny.org/, and the description of the
civil legal services division of The Public Defender Service of the District of
Columbia at http://www.pdsdc.org/PDS/CivilLegalServices.aspx. Regarding
56
the incorporation of civil defense strategies into criminal defense
services generally, see Michael Pinard, “Broadening the Holistic Mindset:
Incorporating Collateral Consequences and Reentry into Criminal Defense
Lawyering,” Fordham Urban Law Journal 31, (2004): 1067.
34 Regarding corrections department’s implementation of programming that
relates to post-release risks and needs, see for example Florida Department
of Corrections’ Bureau of Transition and Substance Abuse Treatment
Services, http://www.dc.state.fl.us/orginfo/SubAbuse/index.html; Georgia
Department of Corrections’ Re-Entry Partnership Housing program,
http://www.dca.state.ga.us/housing/specialneeds/programs/rph.asp; and
Indiana Department of Corrections’ Reentry Programs page,
http://www.in.gov/idoc/2799.htm.
35 In recent years, for example, states such as New York, North Carolina,
Maryland, and Ohio have begun to compile and inventory collateral
consequences Also, the American Bar Association—through a contract
with the National Institute of Justice and authorized by the federal 2007
Court Security Improvement Act—is currently undertaking the herculean
task of putting together a comprehensive compendium of all collateral
consequences for both state and federal offenses in each of the 50 states,
the U.S. territories and the District of Columbia. And in 2009, the National
Conference of Commissioners on Uniform State Laws authorized the
Uniform Collateral Consequences of Conviction Act (UCCCA), urging states
to engage in their own efforts to compile collateral consequences into a
single document, undertake steps to ensure defendants are appropriately
notified of relevant collateral consequences at all stages of the criminal
process (i.e., at pretrial, sentencing, and release/discharge), and to adopt
mechanisms to mitigate those consequences that impact areas known
to be critical to successful reentry such as those related to employment,
education, housing, public benefits, and occupational licensing.
36 National Association of Criminal Defense Lawyers, Collateral Damage:
America’s Failure to Forgive or Forget in the War on Crime: A Roadmap
to Restore Rights and Status After Arrest or Conviction (Washington, DC:
NACDL, 2014), 22.
37 For an overview of this phenomenon, see James Jacobs and Tamara
Crepet, “The Expanding Scope, Use, and Availability of Criminal
Records,” NYU Journal of Legislation & Public Policy 11 (2008): 177. For
an overview of commercial criminal record databases, see SEARCH, The
National Consortium for Justice Information and Statistics, Report of the
National Task Force on the Commercial Sale of Criminal Justice Record
Information (Sacramento, CA: SEARCH Group).
38 A. Blumstein and K. Nakamura, “Redemption in the Presence of
Widespread Criminal Background Checks,” Criminology 47, no. 2 (2009):
328-331.
39 National Association of Criminal Defense Lawyers, Collateral Damage:
America’s Failure to Forgive or Forget in the War on Crime: A Roadmap
to Restore Rights and Status After Arrest or Conviction (Washington, DC:
NACDL, 2014), 56.
40 Particularly for those who were exonerated of the underlying crime,
expungement plays a large role in preventing future offending. For
these individuals, not having their record cleared after exoneration is a
significant predictor of criminal activity post-release, and the effect is
strongest among those who had no prior record before being wrongfully
convicted. This is consistent with labeling theory, which posits that a
person’s status as a former criminal has a stigmatizing effect, regardless
of whether that status was wrongfully attached. One study followed
118 exonerated individuals in four states—Florida, Illinois, New York,
and Texas. The study’s authors described expungement as “extremely
difficult” to obtain in Florida, Illinois, and Texas, but “substantially better”
in New York. Unsurprisingly, post-exoneration offending in New York is
“substantially lower” than in the other three states. See Amy Shlosberg
et al., “Expungement and Post-exoneration Offending,” Journal of
Criminal Law & Criminology 104, no. 2 (2014). For further information
on labeling theory and its effect, see J. Bernburg, M. Krohn and C.
Rivera, “Official Labeling, Criminal Embeddedness, and Subsequent
Delinquency: A Longitudinal Test of Labeling Theory,” Journal of
Research in Crime and Delinquency 43 (2006).
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
103
41 Empirical research demonstrates that after approximately seven years
there is little or no difference in the risk of future offending between those
with a criminal record and those without. However, mitigating factors, like
age of offense, can yield reduced risk of reoffending after much shorter
time lapses in many instances. For more information, see A. Blumstein
and K. Nakamura, “Redemption in the Presence of Widespread Criminal
Background Checks,” Criminology 47, no. 2 (2009); M.C. Kurlychek, R.
Brame, and S.D. Bushway, “Enduring Risk? Old Criminal Records and
Predictions of Future Criminal Involvement,” Crime & Delinquency 53, no.
1 (2007): 64-83; and M.C. Kurlychek, R. Brame, and S.D. Bushway, “Scarlet
Letters and Recidivism: Does an Old Criminal Record Predict Future
Offending?” Criminology & Public Policy 5, no. 3 (2006).
42 A 2013 article detailed the experiences of several individuals with
criminal histories, offering insight into how these people navigated their
status. For instance, one individual reported fearing that he would “look
like a liar” if he failed to disclose his sealed records to an employer,
while another individual was unsure exactly which employers counted
as “governmental” for the purposes of securing access to her sealed
records, thus feeling compelled to disclose. According to the author, their
criminal histories “created multiple selves, but offered no way to manage
them in practical terms.” See Amy Myrick, “Facing Your Criminal Record:
Expungement and the Collateral Problem of Wrongfully Represented
Self,” Law & Society Review 47 (2013): 73, 92. See also Megan C.
Kurlychek, Robert Brame, and Shawn D. Bushway, “Enduring Risk? Old
Criminal Records and Short-Term Predictions of Criminal Involvement,”
Crime & Delinquency 53(1) (2007).
43 For information regarding juvenile brain chemistry, see Laurence
Steinberg, “Should the science of adolescent brain development inform
public policy?,” American Psychologist 64, no. 8 (2009): 742 (“There is
incontrovertible evidence of significant changes in brain structure and
function during adolescence.”); Elizabeth R. Sowell et al., “In vivo evidence
for post-adolescent brain maturation in frontal and striatal regions,” Nature
Neuroscience 2 (1999): 860. As an example of formal criminal justice
acknowledgment of reduced juvenile culpability, see Graham v. Florida,
130 S. Ct. 2011, 2026 (2010) (“[D]evelopments in psychology and brain
science continue to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved in behavior control
continue to mature through late adolescence.”). For information regarding
juveniles’ reduced culpability, see Laurence Steinberg and Elizabeth S.
Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity,
Diminished Responsibility, and the Juvenile Death Penalty,” American
Psychologist 58, no. 12 (2003): 1011-4.
44 The court and all law enforcement agencies must expunge the conviction
records, and all state agencies must remove entries made as a result of
the conviction and reverse administrative actions taken against a person
as a result of the conviction. Access is only granted to state and local law
enforcement agencies, for employment purposes only. See G.S. § 15A-151(a)
(6). However, the person’s DNA will remain in the state DNA databank.
45 Legal cases frequently involve a “burden of proof”—the level of proof
necessary for one side to prevail in a particular proceeding. The burden
of proof can vary as to how much proof is required and also as to which
party is tasked with doing the proving, or “bearing” the burden of proof.
In civil cases, the burden of proof is a “preponderance of the evidence”
(also referred to as a “balance of the probabilities”), in which the winning
side must show that his or her claims are more likely true than not true—a
standard often characterized as proving something more than 50 percent
likely. For criminal cases the standard is much higher. To succeed in a
criminal case, the prosecutor must prove a defendant’s guilt “beyond a
reasonable doubt.” A third standard—“clear and convincing evidence”—
is an intermediate standard of proof higher between the civil and
criminal standards, and is often required in quasi-criminal cases or when
a person’s civil rights are in jeopardy, such as cases seeking to terminate
parental rights or have someone committed to a mental institution. See
Ronald J. Allen and Alex Stein, “Evidence, Probability and the Burden
of Proof,” Arizona Law Review 55 (2013) and Alex Stein, “Constitutional
Evidence Law,” Vanderbilt Law Review 61 (2008).
46 For an analysis of the myriad challenges facing convicted felons, see
Christopher Uggen, Jeff Manza, and Angela Behrens, “’Less than the
average citizen’: stigma, role transition and the civic reintegration of
convicted felons,” in Shadd Maruna and Russ Immarigeon, eds., After
Crime and Punishment : Pathways to Offender Reintegration (Portland:
Willan Publishing, 2004), 258-290. Also see Jeremy Fagan and Tracey
L. Myers, “Punishment, Deterrence and Social Control: The Paradox of
Punishment in Minority Communities,” Ohio State Journal of Criminal
Law 6 (2008): 210 for insights into how the stigma of felony conviction
reduces individuals’ incentives to invest in their own human capital.
47 This is consistent with research that has demonstrated that positive
reinforcement and the use of incentives are components of effective
behavior modification. See Vera Institute of Justice, The Potential of
Community Corrections to Improve Safety and Reduce Incarceration
(New York: Vera Institute of Justice, 2013), 19.
48 Besides helping individuals avoid criminal convictions and the attendant
collateral consequences, this strategy also reduces the future burden
on those communities to which these individuals return. For information
regarding how sentencing changes today can reduce the number of
individuals with criminal records in the future, see John Schmitt and Kris
Warner, Ex-offenders and the Labor Market (Washington, DC: Center for
Economic and Policy Research, 2010), 3.
49 Marlaina Freisthler and Mark Godsey, “Going Home To Stay: A Review of
Collateral Consequences, Post Incarceration Employment, and Recidivism
in Ohio,” University of Toledo Law Review 36 (2005): 525, 529 (“So strong
is the inverse correlation between employment and recidivism that
employment is considered a rehabilitative necessity.”). Also see Jeffrey D.
Morenoff and David J. Harding, Final Technical Report: Neighborhoods,
Recidivism, and Employment Among Returning Prisoners (Ann Arbor:
University of Michigan, October 2011, prepared under grant number
2008-IJ-CX-0018); and M.C. Kurlychek, R. Brame, and S.D. Bushway,
“Enduring Risk? Old Criminal Records and Predictions of Future Criminal
Involvement,” Crime & Delinquency 53, no. 1 (2007): 66 (“an abundance
of criminological research suggests that one of the key social bonds that
help past offenders lead law abiding lives in the attainment of stable
employment”).
50 James Jacobs and Tamara Crepet, “The Expanding Scope, Use, and
Availability of Criminal Records,” New York University Journal of
Legislation and Public Policy 11 (2008).
51 As examples of formal barriers to employment, New York bars those with
certain misdemeanor convictions from working as a home health aide,
and Texas prohibits someone with any of a number of criminal convictions
from working in a facility serving the elderly, terminally ill, or people with
disabilities. See N.Y. Public Health Law § 2899(6) and 2899–a(1), N.Y.
Executive Law §§ 845–b(2) and 845-b(5)(b); Tex. Health & Safety Code
Ann. § 250.006. On the disinclination of employers to hire individuals with
criminal records more generally, see Harry J. Holzer et al., Will Employers
Hire Former Offenders?: Employer Preferences, Background Checks, and
Their Determinants, in IMPRISONING AMERICA: THE SOCIAL EFFECTS
OF MASS INCARCERATION 205, 208–10 (Mary Pattillo et al. eds., 2004).
Research also makes clear that even employers reluctant to acknowledge
a policy of not hiring individuals with a criminal record show a marked
disinclination in practice to actually hire such a person. See Devah Pager
& Lincoln Quillian, “Walking the Talk?: What Employers Say Versus What
They Do,” American Sociological Review 70, no.3 (2005).
52 Madeline Neighly and Maurice Emsellem, WANTED: Accurate FBI
Background Checks for Employment (New York: National Employment
Law Project, 2013).
53 See Ram Subramanian, Rebecka Moreno, and Sharyn Broomhead,
Recalibrating Justice: A Review of 2013 State Sentencing and Corrections
Trends (New York: Vera Institute of Justice, 2014). Also see National
Employment Law Project, Ban the Box: U.S. Cities, Counties, and States
Adopt Fair Hiring Policies to Reduce Unfair Barriers to Employment of
People with Criminal Records (New York: NELP, 2014).
54 This is a significant provision to the law because, even as ban the box
laws proliferate, the efficacy of such laws is open to question. Most rely
on private enforcement through individual complaints.
55 According to the Society for Human Resource Management, the two most
104
VERA INSTITUTE OF JUSTICE
57
common reasons for not hiring ex-offenders are the risk of a crime being
committed at work and the fear of a negligent hiring lawsuit. See Background
Checking—The Use of Criminal Background Checks in Hiring Decisions, Jul.
19, 2012, available at http://www.shrm.org/research/surveyfindings/articles/
pages/criminalbackgroundcheck.aspx#sthash.skBL4NA0.dpuf.
56 See note 37.
57 See note 9.
58 Jenny Roberts, “Why Misdemeanors Matter: Defining Effective Advocacy
in the Lower Criminal Courts,” UC Davis Law Review 45 (2011): 277.
59 In the second scenario, the person would be charged with the underlying
offense, and then also with the offense of using criminal records to
commit a crime against someone.
60 For background information on immigration-related collateral
consequences, see Yolanda Vásquez, “Realizing Padilla’s Promise: Ensuring
Noncitizen Defendants are Advised of the Immigration Consequences
of a Criminal Conviction,” Fordham Urban Law Journal 39 (2011). For
background information on Medicaid eligibility for individuals who have
been incarcerated, see Bazelon Center for Mental Health Law, The Effect
of Incarceration on Medicaid Benefits for People with Mental Illnesses
(Washington, DC: Bazelon Center for Mental Health, 2009). Social security
income benefits are terminated when an individual has been incarcerated
for at least twelve months. Once SSI benefits are lost, Medicaid eligibility
will often also be lost and the individual will be required to apply again
as a new applicant. For background information on family-related issues,
see Philip M. Genty, “Damage to Family Relationships as a Collateral
Consequence of Parental Incarceration,” Fordham Urban Law Journal
30 (2003). For information regarding financial health and economic
mobility, see Collateral Costs: Incarceration’s Effect on Economic Mobility,
(Washington, DC: The Pew Charitable Trusts, 2010); Taja-Nia Y. Henderson,
“New Frontiers in Fair Lending: Confronting Lending Discrimination
Against Ex-Offenders,” New York University Law Review 80 (2005): 1237.
61 For research that addresses the affects of employment, housing and
educational opportunities on recidivism, see M. Makarios et. al.,
“Examining the Predictors of Recidivism Among Men and Women
Released From Prison In Ohio,” Criminal Justice and Behavior 37, no.12
(2010): 1377-1391. See also A. Blumstein and K. Nakamura, “Redemption
in the Presence of Widespread Criminal Background Checks,”
Criminology 47, no. 2 (2009): 331 (noting that it is “well established”
employment is powerful predictor desistance). For information regarding
research on criminal activity and engagement in the political process, see
Reuven Ziegler, “Legal Outlier, Again? U.S. Felon Suffrage: Comparative
and International Human Rights Perspectives,” Boston University
International Law Journal 29 (2011): 208.
62 In many states, violent offenses are those that have at least one element
involving force or the threat of force, or those that, even though no
violence was used or threatened, involve a substantial risk that force or
the threat of force could be used in the course of committing the offense.
See Alice Ristroph, “Criminal Law In the Shadow of Violence,” Alabama
Law Review 62 (2011), noting that violence is often defined in the law in
terms of risk or danger instead of in terms of threatened or actual injury.
67 For example, in New Jersey, individuals must send—via certified mail
and return receipt requested—their filing documents to upwards of
nine different government bodies. See New Jersey State Courts,
How to Expunge Your Criminal Record and/or Juvenile Record,
http://www.judiciary.state.nj.us/prose/10557_expunge_kit.pdf.
68 See note 41, discussing empirically justified waiting period lengths and
the nuanced nature of these studies. Additionally, risk of recidivism
research is often based on data collected less than two years after the
offense or conclusion of sentence, and thus do not necessarily speak to
the imposition of 15 or 20 year waiting periods. See M.C. Kurlychek, R.
Brame, and S.D. Bushway, “Scarlet Letters and Recidivism: Does an Old
Criminal Record Predict Future Offending?” Criminology & Public Policy
5, no. 3 (2006): 4.
69 See for example Kentucky HB 463 (2011) or Illinois SB 3458 (2012).
70 Under the Fair Credit Reporting Act (FCRA), if adverse action is taken on
the basis of a credit report, employer has to give person a “pre-adverse
action disclosure” that includes a copy of the report. The same is not
required of criminal background checks because it’s not under the FCRA,
but it is a best practice and many employers still give notice.
71 See Michael H. Jagunic, “The Unified, Sealed, Theory: Updating Ohio’s
Record-Sealing Statute for the Twenty-First Century,” Cleveland State
Law Review, 59 (2011):, 163. Indeed, video tutorials can be found
online that detail how to search for and access an individual’s criminal
record. See Judge Eugene M. Hyman (ret.), “The Scarlet eLetter and
Other Roadblocks to Redemption for Female Offenders,” Santa Clara
Law Review 54 (2014): 119, 149. For more information on commercial
databases, see James Jacobs & Tamara Crepet, “The Expanding Scope,
Use, and Availability of Criminal Records,” NYU Journal of Legislation &
Public Policy 11 (2008): 177, 185-86; and Jagunic (2011), pp. 161, 162-3.
72 Joy Radice, “Administering Justice: Removing Statutory Barriers to
Reentry,” University of Colorado Law Review 83 (2012): 715, 750. See
also Michael H. Jagunic, “The Unified “Sealed” Theory: Updating Ohio’s
Record-Sealing Statute for the Twenty-First Century,” Cleveland State
Law Review, 59 (2011): 161, 170-72. This is particularly problematic in the
context of juvenile records, where, in many jurisdictions, certain offenses
are automatically sealed after the child turns eighteen. Private criminal
records companies that copy juvenile records often do not have incentive
to wipe these records one they are sealed. See Sarah Montana Hart,
“The Collateral Consequences of Juvenile Publicity What the Montana
Legislature Has Overlooked in the Youth Court Act,” Montana Lawyer 36,
no. 4 (2011): 7, 25.
73 For more information on the minimal regulations placed on private
criminal record reporting companies, see James Jacobs & Tamara Crepet,
“The Expanding Scope, Use, and Availability of Criminal Records,” NYU
Journal of Legislation & Public Policy 11 (2008): 177, 186-87.
74 Marsha Weissman, et al., The Use of Criminal History Records in College
Admissions Reconsidered (New York: Center for Community Alternatives,
2013), 8-12.
75 Ibid., p. 15.
63 For example, Indiana requires a hearing before sealing a record, and
notice of the hearing must be publically posted in the courthouse. See
Ind. Code Ann. § 5-14-3-5.5(c) (West).
76 See note 49 for information on the unsound rationale for overly long
waiting periods and note 16 for information how collateral consequences
can increase risk of reoffending.
64 See Louisiana Code of Criminal Procedure Art. 983.
77 While the EEOC promulgates guidelines regarding employer use of criminal
records that prohibits categorical exclusion of applicants with any criminal
histories and encourages employers to look at all the circumstances
surrounding a conviction (for example, its relevance to the job sought),
liability under Title VII still requires an individual to prove that an employer’s
criminal records policy caused a disparate impact occurred based on race,
color, religion, sex or national origin. See EEOC, “Enforcement Guidance
on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964 (April 24, 2012),
available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
65 This is a commonly accepted reality. For example, Minnesota Court’s
website warns: “expungement involves a lot of work with forms and
attention to detail, and it takes at least four months to complete the
process” http://www.mncourts.gov/selfhelp/?page=328.
66 See Amy Myrick, “Facing Your Criminal Record: Expungement and the
Collateral Problem of Wrongfully Represented Self,” Law & Society
Review 47 (2013): 73–104 for narratives of several expungement seekers
struggles with inaccurate, incomplete, missing records.
58
RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
105
78 Marsha Weissman, et al.. The Use of Criminal History Records in College
Admissions Reconsidered (New York: Center for Community Alternatives,
2013), 5-12.
79 Ariel Kramer, “3 New York Colleges to Drop Crime Queries for
Applicants,” The New York Times, October 26, 2014.
80 For example Missouri HB 1665 (2014) requires anyone who publishes or
disseminates criminal history information online to remove the record
upon the request of the subject of the record, and prohibits distributors
from charging fees to remove or correct information. Also see Texas
SB 1289 (2013), which requires companies that publish criminal history
information to investigate complaints and remove erroneous entries.
81 For example, Connecticut HB 5207 (2010) prohibits state employers and
licensing agencies from considering arrests not leading to conviction or
“erased” conviction records.
82 See, for example, California AB 1650 (2014).
83 See The Opportunity Agenda, An Overview of Public Opinion and
Discourse on Criminal Justice Issues (Washington, DC: The Opportunity
Agenda, 2014), 7.
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RELIEF IN SIGHT? STATES RETHINK THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTION, 2009-2014
107
Acknowledgments
The authors would like to thank Margaret diZerega for her help with information
about convictions and public housing. We would especially like to thank Patricia
Connelly for her hard work in the editing process, and Peggy McGarry for her
insight and guidance throughout the drafting process.
© Vera Institute of Justice 2014. All rights reserved. An electronic version of this report is posted on Vera’s website at
www.vera.org/states-rethink-collateral-consequences.
For more information about this or other publications from Vera’s Center on Sentencing and Corrections, contact Ram Subramanian
at [email protected].
The Vera Institute of Justice is an independent nonprofit organization that combines expertise in research, demonstration projects,
and technical assistance to help leaders in government and civil society improve the systems people rely on for justice and safety.
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VERA INSTITUTE OF JUSTICE
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This year marks the 20th anniversary of the 1994 Crime Bill. To examine the
legacy of this landmark legislation, the lessons learned, and the path ahead,
Vera launched Justice in Focus: Crime Bill @ 20, a multimedia initiative
featuring interviews with and statements from architects of the bill, criminal
justice experts, policymakers, law enforcement officials, and community
leaders, which can be found at www.vera.org/crimebill20. In conjunction
with the Crime Bill initiative and to assess current legislative trends, Vera
has issued a series of reports on where the states stand on mandatory
minimums, drug law reform, and other sentencing and corrections policies
and practices. This report is the final in that series.
Suggested Citation
Ram Subramanian, Rebecka Moreno, and Sophia Gebreselassie.
Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction,
2009-2014. New York, NY: Vera Institute of Justice, 2014.
Vera Institute of Justice
233 Broadway, 12th Floor
New York, NY 10279
Tel: (212) 334-1300
Fax: (212) 941-9407
Washington DC Office
1100 First St. NE, Suite 950
Washington, DC 20002
Tel: (202) 465-8900
Fax: (202) 408-1972
New Orleans Office
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New Orleans, LA 70130
Tel: (504) 593-0937
Fax: (212) 941-9407
Los Angeles Office
707 Wilshire Blvd., Suite 3850
Los Angeles, CA 90017
Tel: (213) 223-2442
Fax: (213) 955-9250
109
A Prosecutor’s Guide for
Advancing Racial Equity
Prosecution and Racial Justice Program
NOVEMBER 2014
110
From the president
Do prosecutors’ decisions play a role in the strikingly disparate outcomes for
blacks and Latinos in criminal cases evident throughout the United States? If
so, what are the connections between the exercise of prosecutorial discretion
and the overrepresentation of these groups in the criminal justice system?
How can prosecutors reduce unwarranted overrepresentation?
These questions are vital for prosecutors to tackle at a time of intense national focus on the need for the criminal justice system to deliver equal justice.
But now as always, they are extremely challenging to address.
Even if the political will exists, prosecutors generally find it daunting to gain a
nuanced understanding of how the work they do may adversely affect the fairness they seek to achieve. And although prosecutors collect massive amounts of
data in the course of case processing, they often lack the time or the expertise to
analyze it. Complex political and cultural pressures within the criminal justice
system and the larger society make many prosecutors’ offices shy away from
examining their work as it relates to delivering equal justice for all.
When the Vera Institute of Justice launched the Prosecution and Racial Justice Program (PRJ) in 2005, the aim was to help prosecutors take on these difficult but fundamental questions. Partnering with prosecutors seeking a clear
picture of how their offices’ structures and practices may have contributed to
unequal outcomes, PRJ sent researchers into the offices to see what story the
administrative data told. By studying the information collected during case
processing, the researchers were able to identify procedures and steps that
could shift the office practice and culture in ways that privileged and advanced
the goal of equal justice.
Knowledge may be power. But prosecutors also need the courage to act on
what they learn by changing the aspects of their work that contribute to inequity. And they should take these insights into the public arena, where sharing
what they’ve learned and explaining what they are doing to change their approach can begin to reinvigorate the community’s faith in our justice system.
Nicholas Turner
President and Director
Vera Institute of Justice
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A Prosecutor’s Guide for Advancing Racial Equity
111
Contents
4Foreword by John Chisholm
5Introduction
6Using the Guide: How Research Helps Prosecutors
7Research Readiness: A Checklist
9Engaging a Research Partner and Hiring Staff
10Setting Expectations for the Research
10 Privacy and Confidentiality in Research
11Laying the Foundations and Building Partnerships
12Data Collection and Analysis
13 What to Do with the Data
14 Highlights: PRJ’s Partnerships
14Mecklenburg County, North Carolina
16Milwaukee County, Wisconsin
17New York County, New York
19Appendices
21Glossary of Research Terms
22Recommended Contents of a Prosecutor’s
Case-Tracking System
38Sample Memorandum of Understanding
41Resources on PRJ’s Work and Issues
Related to Prosecutorial Discretion
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Foreword
My work with the Vera Institute of Justice was already cut out for me when I
became District Attorney of Milwaukee County in 2007. I inherited a partnership with Vera’s Prosecution and Racial Justice Program (PRJ) designed to examine prosecutorial decision making in order to learn whether the Milwaukee
County District Attorney’s Office’s practices contributed to racial disparities in
case outcomes.
Most prosecutors may find it difficult, even risky, to do this kind of stocktaking. But you can’t change what you can’t measure. I was committed to
improving the way our office worked, and I recognized that PRJ’s research into
the use of our discretionary power at crucial decision points in case processing
was an invaluable tool for achieving my goals.
Since then, my office has continued to partner with PRJ to dig into our
data; we’ve learned a tremendous amount about how we can function more
effectively. Using these insights, we’ve crafted new approaches to our office
structure and culture. This guide, which contains highlights of PRJ’s work
with our office, will help other prosecutors who want to understand how
their practices affect the quality of justice in their communities and move
toward better results.
I’ve taken the message about PRJ’s evidence-based work into the community I serve, around the country to my fellow prosecutors, and to our national
lawmakers on Capitol Hill. In many of these conversations, I have stressed that
prosecutors’ mandate is to make people confront reality. They need to take
the same clear-eyed approach to the problem of disparate racial outcomes in
the cases that come into their hands. Only by confronting the realities of their
decisions and practices can prosecutors begin to rethink how to achieve equitable outcomes for all people involved in the criminal justice system.
John T. Chisholm
District Attorney
Milwaukee County, Wisconsin
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113
Introduction
If you are a prosecutor, you have undoubtedly observed that members of
certain minority groups—notably blacks and Latinos—are involved in the
U.S. criminal justice system in disproportionately large numbers compared
to their presence in the general population. This phenomenon, known as
disproportionate minority representation, has captured the attention of
journalists, scholars, justice advocates, and members of the criminal justice
community, among many others.
While factors contributing to racial and ethnic disparities in criminal justice
outcomes are varied and complex, the actions prosecutors take can play a role.
Prosecutors have significant discretionary power in the course of determining how to handle the cases of people arrested for criminal offenses. The act
of exercising discretion may result in unintended consequences harmful to
members of certain racial groups. Despite efforts to be fair and equitable, prosecutors may unintentionally contribute to the overrepresentation of minorities
in the nation’s courtrooms, prisons, and jails.
As public servants, prosecutors may see the negative impact of this phenomenon in the communities they serve, where they may encounter widespread
distrust and skepticism about the equal delivery of justice. For all these reasons, prosecutors can benefit from understanding the connections between
their practices and the system’s outcomes in the area of racial equity.
Until now, prosecutors have lacked ready access to analytical tools that
would help them to see the overall impacts of their decisions. A fuzzy picture of
the pattern of practices in their offices can hamper targeted corrective action.
When it launched in 2005, the Prosecution and Racial Justice Program (PRJ)
at the Vera Institute of Justice began an unprecedented effort to fill this gap by
working in partnership with prosecutors’ offices to study their use of power
and discretion. From the start, PRJ’s goal has been to help the partnering
prosecutors’ offices reduce unwarranted racial disparity in the criminal justice
system by showing them the cumulative impact on case outcomes of their
policies, procedures, and daily practices. These voluntary partnerships have
relied on the prosecutors’ interest in demystifying the role of race and ethnicity
in their case results.
PRJ’s experience has shown that giving prosecutors a coherent, evidencebased picture of their offices’ performance in the area of racial fairness is the
essential first step toward achieving more equitable results. To accomplish
this, PRJ researchers analyzed data provided by their partners to learn whether
prosecutorial decisions led to racially neutral or disparate consequences. They
used statistical methods that reveal whether, all things—such as a defendant’s
prior record or seriousness of the charged offense—being equal, race is affecting case outcomes.
The act of exercising
discretion may
result in unintended
consequences
harmful to members
of certain racial
groups. Despite
efforts to be fair
and equitable,
prosecutors may
unintentionally
contribute to the
overrepresentation
of minorities in the
nation’s courtrooms,
prisons, and jails.
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This guide is
for those of you
interested in
joining the ranks
of prosecutors
seeking innovative
solutions to the
vexing problem of
racial disparity in
the criminal justice
system.
PRJ staff worked with their prosecutor counterparts to create reliable datacollection systems and fill gaps in the types of information being collected.
They also proposed management protocols designed to allow the prosecutor’s
office in question to find and address unwarranted racial disparity going forward. PRJ’s partners have found that changing an office’s culture to one that
values, systematically captures, and analyzes case data can improve organizational management, as well as enhance racial equity and the office’s perceived
legitimacy.
PRJ’s model, which involves placing researchers on site in prosecutors’ offices, has produced fruitful partnerships. But Vera has recognized that it is
unsustainable for a single organization to replicate this work, jurisdiction by
jurisdiction, on a national scale. A new approach must evolve that equips prosecutors to launch the types of racial-impact studies PRJ has overseen.
This guide is for those of you interested in joining the ranks of prosecutors
seeking innovative solutions to the vexing problem of racial disparity in the
criminal justice system. It spells out what is involved in using the partnership
and research model that PRJ developed. If you decide you are ready and willing to undertake this work, you will be expanding a growing body of knowledge and ensuring the sustainability of a prosecutorial movement for greater
transparency, fairness, and accountability.
Using the Guide: How Research
Helps Prosecutors
Research and evidence-based analysis are at the heart of the process explained
in this guide. Data collected and analyzed in partnership with a research team
can teach prosecutors many things. Through rigorous research, prosecutors
gain the knowledge they need to:
>identify institutional factors that may lead to disparate racial
outcomes;
>
assess how prosecutors are applying their discretion;
>
implement corrective courses of action if needed; and
>
serve as leaders for racial equity in their jurisdictions.
While each office has its own management structure and style, everyone in
a prosecutor’s office involved in this effort can benefit from using the guide.
It serves as a checklist for chief prosecutors evaluating whether their offices
are prepared to move forward with this kind of research. If they decide to
undertake the process, it can lead those charged with implementing the work
through the steps involved in finding research partners, gathering the data
they will need to analyze, and building an organizational culture that values
6
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using data to achieve more equitable racial outcomes in prosecution.
This guide is rooted in the partnership and research model that PRJ developed in collaboration with a number of prosecutors’ offices throughout the
United States. It is a field-informed guide, based on PRJ’s efforts in a variety
of jurisdictions, with offices of varying sizes and structures. It includes examples from PRJ’s partnerships and links to relevant research and reports. It is
designed as a stand-alone resource, but offices that want more guidance may
consult Vera staff.
Research Readiness: A Checklist
Most prosecutors’ offices have never worked with outside researchers or tried
to conduct a research study. The items contained in this section will help you
decide whether you are ready and willing to do the work.
See Appendix A for a glossary of research terms.
Assessing Your Office’s Capacity
Before starting, chief prosecutors should candidly assess their desire and ability to devote time and other resources to this endeavor.
Consider:
>
commitment to project goals,
>
data-management capabilities,
>
caseloads,
>
office stability and priorities,
>
funding the research,
>
political will and cultural change, and
>
access to potential research partners.
Each of these areas is discussed below.
Commitment to Project Goals. The obvious first priority is a sincere belief in
the value of the work. If you are willing to ask difficult, probing questions and
use data to help you reach accurate conclusions about whether race and ethnicity are factors influencing the outcomes of cases prosecuted by your office,
this guide will help you. On the other hand, there is little to gain from partnering with a research team if even dramatic findings would fail to provoke institutional change within your office. Only you can answer these questions.
Data-Management Capabilities. Prosecutors’ offices vary in their abilities
to manage data. Some have well-developed electronic case-management
systems, while others have no electronic systems at all. To do this work, you
will need an electronic system, and building one from scratch is a major un-
Political Will and
Cultural Change
The success of research into
an office’s work to determine
if discretionary decision making and practices contribute to
unwarranted racial bias in case
outcomes is not dependent on
finding nothing wrong. Rather,
it rests on whether a chief
prosecutor has the political will
to launch the examination and
to see the process through to
fruition regardless of the findings. It is important to note that
success here does not necessarily mean an assessment that
an office is bias-free. Rather, it
is more likely that most offices
will discover that, no matter
how much individual prosecutors seek to be fair and just in
their work, some racially disparate outcomes will exist in their
offices in the aggregate. Therefore, success means having the
will to address what they find
and to enact safeguards at the
institutional level to ensure that
policies and procedures governing an entire office further the
goal of racial equity.
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dertaking. Therefore, before going further, pause to consider your data-management capabilities. Do you have an electronic case-management system?
Is it reliable? How much data does it capture, and of what types? Is your staff
routinely using the system? For information on how to maximize your office
system’s capacity to capture data that reflects discretionary decisions and
management practices, see Appendix B, page 22.
Does a sufficiently
stable environment
exist in your office to
support a protracted
commitment
to research and
potential subsequent
activities? The
research will likely
take 12 to 18 months.
Caseloads. Regardless of your office’s size, data-collection and analysis can
help to enhance its fairness, professionalism, and accountability. However,
for researchers to reach statistically significant findings—those not simply
due to chance—the caseload will have to be of a sufficient size. If your office’s
caseloads are small, this may be a challenge. Therefore, smaller jurisdictions
should consult with their research partners about caseload size. To compensate
for small caseloads, researchers may formulate research plans that envision
analyzing data spanning longer periods. However, this strategy may hold challenges: reaching back too far for data could produce findings that are stale and
irrelevant to current office practices. If, on the other hand, your office is large
and your caseloads heavy, your jurisdiction’s research team will be likely to
reap the benefit of a rich dataset. In this instance, it may be easier to produce
statistically significant findings based on data that is proximate in time and
relevant to existing office practices.
Office Stability and Priorities. Does a sufficiently stable environment exist in
your office to support a protracted commitment to research and potential subsequent activities? The research will likely take 12 to 18 months. Afterward, you
will need time to explore the findings’ meaning for your office and whether
and what remedial actions are necessary. For instance, in response to findings,
an office may wish to develop new policies and practices, restructure old ones,
or train staff. There could be reasons why an office may decide to defer these
activities until a later date. For example, if a district attorney’s term of office is
to end shortly after enlisting the support of a research partner, it may be best
to wait until new leadership of the office, and a commitment to the work, are
in place. Likewise, other major initiatives within your office may take precedence. You should therefore take inventory of your office’s obligations in deciding whether the time is right.
Funding the Research. In a tight economic climate characterized by shrinking budgets for criminal justice services, funding innovative initiatives takes
creativity and resourcefulness. If your office affiliates with a research organization or local university, you may be better positioned to seek funding through
foundation or government grants. Additional sources of funding and in-kind
support may be available through local community foundations. For example,
when Vera partnered with Nebraska’s Lancaster County Attorney’s Office, the
8
A Prosecutor’s Guide for Advancing Racial Equity
117
Lincoln Community Foundation was generous in providing aid such as community contacts, advice, meeting space, assistance with publicity, and other
important, non-monetary support. You may also make use of your office’s unrestricted funds, including its asset-forfeiture account.
Access to Potential Research Partners. It is important to note, at the outset,
that research is unfamiliar territory for most prosecutors, and most attorneys,
in general. This guide will provide a framework to assist prosecutors in finding and working with researcher partners. If you are interested in implementing the methodology contained here, before going further, we recommend
that you start thinking about what resources exist in your jurisdiction—such
as schools, research institutes, or nonprofit organizations. For the sake of cost
and convenience, you will be wise to look for a potential research partner
located nearby.
Engaging a Research Partner
and Hiring Staff
The research partner you choose is critical. That organization or entity will
direct the research and will assist your office in gathering and analyzing data
that will produce findings that can inform office practices for years to come. In
vetting an organization, consider its:
>prior track record working with government or criminal justice
agencies;
>ability to assist in securing funding, particularly from sources requiring rigorous research, such as the National Institute of Justice;
>capacity to dedicate experienced researchers and others to staff the
project; and
>
reputation for neutrality and nonpartisan approach.
One valuable tool in assessing a potential partner organization is its selfdescription, which you can find on its website or request from it. Such a
description will help you assess the organization’s core competencies in
determining whether they are capable of performing the rigorous research
required for this type of endeavor and whether they have experience partnering with government agencies.
Core Competencies
of a Research Team
The ideal research team should
have prior experience working with criminal justice data.
Among the members of the
team, there should be individuals who are able to:
> Analyze large administrative datasets using multivariate
statistical techniques (this may
include dealing with patterns of
missing data across combinations of variables, and merging
datasets using combinations of
variables that uniquely identify
persons and cases;
> Conduct in-depth semistructured interviews of high
level criminal justice practitioners, including prosecutors;
> Draft reports with wellreasoned narratives and visual
aids (e.g., graphs); and
> Present findings to, and
engage in research and policy
discussions with, a broad range
of audiences, including researchers, practitioners, and
the general public.
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Researcher
Qualifications
It may not be necessary for
every person on the research
team to possess all of these
qualifications, but it is typical
for these skills to be adequately
represented:
>graduate degree in the social
sciences or statistics;
>advanced knowledge of statistical software (such as general
commercial packages like
SPSS, STATA, or SAS, public
domain software available via
R);
>advanced knowledge of
multivariate techniques,
including Hierarchical Linear
and non-Linear Models, and
experience with the special
purpose software necessary
to conduct such analyses;
>knowledge of statistical power analysis, and experience
with the necessary special
purpose software;
>experience in developing and
managing databases;
>experience in dealing with
missing data;
>experience in merging large
data sets with multiple identifiers; and
>basic knowledge of SQL
(preferred).
10
Setting Expectations for the
Research
After selecting a research partner, and before the research begins, it will be
important for you and your partner to agree on clear-cut expectations for the
research process. A signed memorandum of understanding (MOU) will help
you accomplish this. MOUs are important because they play a key role in
articulating project goals, expectations, and restrictions on the work. Below are
some of the areas we suggest you cover with your MOU:
>
>
>
>
>
>
>
>
>
>
roles and responsibilities of parties,
ownership and use of data,
dissemination of findings,
preparation and publication of reports,
staffing,
funding,
communication protocols,
confidentiality protocols,
project timeline, and
memorializing the process for your office’s institutional record.
Before you and your research partner begin working together, discuss and
clarify everything in the MOU. A sample MOU is in Appendix C, page 38.
Privacy and Confidentiality in Research
The data that you decide to make the focus of your research is subject to confidentiality protocols that merit careful attention. You may be required to adhere
to a combination of federal regulations, state laws and regulations, your own
office’s policies concerning access to data, and requirements imposed by any
other agencies or organizations that supply data for the project. Research that
is funded by the federal government and involves the acquisition of private,
individual-level data has to follow the common federal rule for the protection
of human subjects. These guidelines are spelled out in Title 45, Part 46, of the
Code of Federal Regulations (45 CFR 46). Among other things, 45 CFR 46 requires
that a properly constituted Institutional Review Board (IRB) review proposals
for human subjects research, although the IRB can waive the review requirement under certain circumstances.
The IRB may require that subjects give informed consent or that data be collected without identifying subjects. Informed consent is usually not required
when pre-existing data are obtained from administrative data systems, as long
as the proposed use of the data poses no threat to the subjects. For closed cases,
an IRB would typically not require defendants’ informed consent (so that nothing that is done in reviewing and analyzing the data could affect the outcome
of a case). On the other hand, if a study proposed by you and your research
A Prosecutor’s Guide for Advancing Racial Equity
119
partners will involve surveys, interviews, or focus group discussions with prosecutors, an IRB would likely require informed consent from the participants—
and certainly would require informed consent for interviews with defendants
or victims. Refer to 45 CFR 46 for further details about the federal requirements
for protection of human subjects.
Some states require adherence to the federal guidelines or impose similar
requirements for all human subjects research, regardless of funding source. In
addition, your own office and other agencies or organizations supplying data
to the project will likely impose additional conditions on who can access the
data, how the data may be used, and how long the data may be retained, and
may require that person and case identifiers be deleted as soon as they are no
longer needed to link information from different sources.
Your research partner should have experience in navigating the requirements surrounding human subjects research, should be able to advise you
concerning acceptable ways of satisfying those requirements, and should have
access to a qualified IRB.
Laying the Foundations and Building Partnerships
Beyond those factors covered in your MOU, you and your research partner need
to set ground rules for project management, logistics, relationships, and basic
legal education of researchers. Clear expectations in these areas will help you lay
a foundation of trust and understanding throughout the research process.
Building a relationship with your research partner requires everyone in your
office to be on board with the research effort and its goals. While it makes
sense to designate one primary point of contact between your office and the
research team, various staff members will and should interact with the researchers. For example, line prosecutors and bureau chiefs may periodically
assist and guide researchers in understanding how your office handles cases
and makes decisions. Other staff members, such as managers, analysts, and IT
personnel may help acclimate researchers to the office, for example, by setting up their work station and transferring data to their network. You may also
need to call on people from your records department to help researchers locate
physical documents such as case files.
An active and ongoing exchange will support the parties’ collaborative
attitudes and help create an atmosphere of mutual trust and respect. It is
important to keep everyone engaged with the research by holding sessions
where the researchers can explain how they will analyze data and use research
findings, field questions, and possibly offer hypotheses about findings. In turn,
legal staff can use these meetings as opportunities to teach the researchers
how your office’s data systems store information at various discretion points.
Researchers can benefit from understanding the specific idiosyncrasies of
your office and jurisdiction. For example, you should schedule meetings with
researchers about a variety of issues such as the types of data that could be
useful for analysis, the case-processing continuum in your jurisdiction, legal
An active and
ongoing exchange
will support the
parties’ collaborative
attitudes and
help create an
atmosphere of
mutual trust and
respect.
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Keep a written
narrative of the
process from
beginning to end.
The record of how
you decided to
undertake the
work, planned for
the process with
your research
partners, and used
the knowledge
gained to inform
your organizational
culture is invaluable.
12
documents used to record case information, and specific processes by which
data are collected and entered into your database.
While you’ll need to make time for researchers and your staff to interact
in all these ways, it is also important to minimize the intrusion on your staff.
Setting up regular meeting times will reduce disruptions of your staff’s main
duties while allowing researchers to get timely answers to their questions.
If your staff includes data analysts, it may be a good idea to put the research
workstation nearby, so that they can confer. You may also want to give the
researchers a temporary office ID card to facilitate their coming and going.
Last, but of great importance, keep a written narrative of the process from beginning to end. The record of how you decided to undertake the work, planned
for the process with your research partners, and used the knowledge gained to
inform your organizational culture is invaluable. It can help future occupants
of your office to understand the importance of what you’ve accomplished and
to keep decisions affecting racial outcomes front of mind.
For a description of Vera’s partnership-building efforts in Manhattan, please
see Appendix D, page 41.
Data Collection and Analysis
The main source of research data is likely to be the administrative dataset
stored in your office’s case-management system. You and your researchers will
need to decide on the period under study. You’ll also need to agree upon which
types of cases you’ll be focusing on. For example, a jurisdiction may wish to examine all misdemeanors, violations, and infractions, and certain felonies such
as drug offenses, weapons offenses, domestic violence, burglary, and robbery
between 2010 and 2013. Researchers may select cases using the most serious
screening charge—the top charge, as determined by a reviewing prosecutor at
the case-screening stage.
To the extent possible, data entered to the office’s case-management
system should be recorded using standardized codes rather than ad-hoc
terminology or narratives. Standardized coding promotes consistency of
interpretation, facilitates summarizing information for internal management purposes, and makes it easier for researchers to conduct quantitative
analyses that relate case characteristics to case outcomes. For example, a
quantitative analysis of how strength of the evidence, race and gender of the
defendant, race and gender of the victim, crime type, and defendant prior
record influence the probability of accepting a case at initial screening can
only be meaningful if everyone entering data to the system is using the same
categories to code the information.
To supplement administrative data, researchers may wish to collect quantitative data specific to the purposes of a given research project, such as a survey of
prosecutors’ opinions or analyses of prosecutors’ decisions for a standardized
set of hypothetical cases.
To learn about case processing flow in a jurisdiction, as well as methods for
recording information electronically and in paper case files, researchers will
A Prosecutor’s Guide for Advancing Racial Equity
121
probably also want to collect and analyze qualitative information. For example,
they may review case notes, interview prosecutors with varied levels of experience, conduct focus group sessions, or review written policies and procedures.
Qualitative analysis complements and allows for a deeper understanding of
quantitative data by giving it context. It also provides information about factors important to prosecutors that researchers might otherwise not think to
measure, or would be more cumbersome to measure quantitatively, such as
office norms, consistency of approach between teams and among prosecutors within a team, or the effects of internal and external context on priorities.
Interviews and focus groups, in particular, can serve as an opportunity for the
research partner to talk with prosecutors about the study, including research
questions, data collection, analysis plans, and possible implications for the office’s policy and practice.
Strategies to overcome potential challenges and maximize strengths
in data collection and analysis. You and your researchers should agree on and
memorialize in writing which case categories and discretion points they will
study. This decision will depend largely on availability of data and priorities
of your jurisdiction. You should communicate and agree about these matters
early in the project.
In any given jurisdiction, researchers come up against a variety of challenges.
Obstacles that frequently arise include missing data (for example, victim data)
and difficulty determining the strength of any given case and the weight of the
evidence, which may require discussions between researchers and prosecutors
about factors indicating strong versus weak evidence in particular categories
of cases. Furthermore, because datasets may not contain information about important factors, including plea bargaining, evidence, or defendants’ socio-economic characteristics, researchers may wish to collect additional information
from randomly selected paper files. In this event, they may find information in
case summary narratives, typically written by screening prosecutors, describing circumstances leading to arrest, evidence gathered, or specific details surrounding court appearances.
Despite such challenges, some data in your jurisdiction are likely to be rich
and plentiful. For example, a number of PRJ’s partner jurisdictions had robust
data on drug offenses.
It bears repeating
that the success
of this work rests
largely in what it
produces, in terms
of action within a
given prosecutor’s
office to implement
measures promoting
greater fairness.
What to Do with the Data
It bears repeating that the success of this work rests largely in what it produces, in terms of action within a given prosecutor’s office to implement measures
promoting greater fairness. In this regard, it is important for prosecutors to
consider, throughout the research period, how the data will eventually be used
to inform policy and practice. The chief prosecutor should set aside time for
regular briefings by the research team. While there can be resistance to believing findings of unwarranted racial disparity, regular briefings can help pave
the way for acceptance and eventual corrective action.
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Highlights: PRJ’s Partnerships
The following examples of PRJ’s partnerships with prosecutors’ offices highlight what each jurisdiction was seeking to learn, the researchers’ assessment
of the issues at hand, the findings, and the next steps in several offices across
the United States. As these examples illustrate, every office must approach
research and any transformative process differently
Mecklenburg County, North Carolina
Mecklenburg County, North Carolina, has a population of 990,977, making it
the most populous county in the state. The county seat is Charlotte, the state’s
largest city.
At its launch in 2005, PRJ entered into a partnership with then-District Attorney Peter Gilchrist. The primary goal at the outset was to help DA Gilchrist’s
office build the capacity to develop its own internal processes that would identify racial disparities in the exercise of prosecutorial discretion. To reach that
goal, PRJ and the Mecklenburg County prosecutor’s office worked together to
construct an electronic data-management system, where there had been none.
This was an ambitious effort: it was no small feat to convert the office’s recordkeeping process from a paper-based to a computer-based system.
Together, PRJ and DA Gilchrist’s office set out to:
>design a data analysis tool that would track prosecutorial decisionmaking outcomes and identify patterns of disparity at key discretionary points;
>integrate this tool into the office’s management process; and
>develop and implement policies and strategies focusing on racial
fairness.
Guided by where data was most plentiful and available, PRJ’s work with DA
Gilchrist’s office focused on drug cases, which comprised a large percentage of
offenses prosecuted by that office.
Like many mid-sized jurisdictions, the Mecklenburg County DA’s office kept
its data in paper files—a system that prevented efficient retrieval and analysis
of large quantities of case-related information. PRJ worked with the office to
upgrade the management of drug-case data by building an electronic system,
known as MeckStat. This tool allowed drug prosecutors to electronically track
case outcomes at critical discretion points.
Mecklenburg reports its complaint characteristics and outcomes by race and
ethnicity. That racial and ethnic information, in turn, is based on the arresting
police officers’ perception of the defendant. While this is not necessarily an
accurate way of identifying defendants’ race and ethnicity, for the purpose of
ultimately understanding racial disparity, perceived classifications may be as
important as actual ones. In analyzing the data by race, PRJ researchers included white Hispanics in the “white” category and black Hispanics as “black.”
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For analyses by ethnicity, PRJ researchers compared non-Hispanic whites with
Hispanic defendants (including Hispanic blacks and Hispanic whites).
PRJ found that black complaint defendants referred to the DA’s office were
more likely to have more arrest charges and more serious arrest charges than
whites. Compared to whites, a higher percentage of blacks were charged with
eight of the most serious drug offenses prior to the DA’s office exercising any
discretion.
PRJ also found that nearly equal percentages of black and white defendants
had their complaint accepted at intake; however, blacks were more likely to have
their top arrest charge rejected. When controlling for the effect of a defendant’s
gender and age, average seriousness of all arrest charges, and the number of arrest charges, blacks were less likely to have their complaint accepted at papering.
Furthermore, blacks were more likely than whites to be offered, in a plea letter,
an active punishment (prison or jail sentence) as opposed to an intermediate/
community punishment (usually a type of probation). The difference persisted
after controlling for the effect of nine variables including the seriousness of the
charges, prior record level, and habitual felon eligibility. Finally, blacks were more
likely to have their complaints disposed in Administrative Court while whites
were more likely to have their complaints disposed in District Court.
Regarding ethnicity, PRJ found that while a high percentage of Hispanics
were convicted of the most serious drug charge (trafficking), many of these
people had low-level prior convictions. In general, Hispanics had more serious arrest charges compared to non-Hispanic whites. Hispanics were also less
likely to have their complaint accepted at papering, even when controlling for
the effect of a defendant’s gender and age, the average seriousness of all arrest
charges, and the number of arrest charges. A higher percentage of Hispanics
received active punishment offers, while a higher percentage of non-Hispanic
whites received intermediate/ community punishment offers. Finally, Hispanics were more likely to have their cases disposed in Administrative Court while
non-Hispanic whites were more likely to have their cases disposed in District
Court.
Based upon PRJ’s findings, DA Gilchrist made changes in his office’s structure
and policy.1 He appointed new supervisory staff and required assistant district
attorneys to screen cases more carefully. PRJ’s initial statistical findings led
DA Gilchrist to implement a more rigorous initial screening process for drug
cases, resulting in a greater than 10 percent decrease in prosecutions and a
corresponding decrease in dismissals later in the process.2 Because the new
procedures allowed prosecutors to identify weak cases at the beginning of the
process, the office was able to direct resources to more meritorious cases.
1
For a more detailed discussion of PRJ’s work with the Mecklenburg County DA’s office, see Angela
J. Davis, “In Search of Racial Justice: The Role of the Prosecutor,” NYU Journal of Legislation and
Public Policy, 16, n. 4 (2013): 838-839.
2
For more information about this process, see Wayne McKenzie, Don Stemen, Derek Coursen, and
Elizabeth Farid, Using Data to Advance Fairness in Prosecution (New York: Vera Institute of Justice,
2009), www.vera.org/pubs/prosecution-and-racial- justice-using-data-advance-fairness-criminalprosecution.
In Mecklenburg
County, the
automation of files
and later analysis
modernized the
processing of drug
cases and provided
data needed to
implement changes
in policy.
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Finally, PRJ developed a comprehensive disparity assessment report, presenting case-outcome statistics organized by race (and ethnicity, when possible), for
two discretionary decision points: initial screening and plea offers. The analyses
addressed drug-related cases entered into the system over a three-year period.
Going into the community, DA Gilchrist described his office’s work with PRJ
and what it revealed, explaining the changes he made as a result. The community responded favorably to the process and the follow-up after DA Gilchrist’s
retirement at the end of 2010.
PRJ’s work in North Carolina shows the value of data collection and analysis
in understanding prosecutorial discretion and promoting racial justice. With
the automation of the office’s files and later analysis, PRJ was able to modernize the processing of drug cases and provide the office data it needed to implement meaningful changes in policy.
MILWAUKEE COUNTY, WISCONSIN
Milwaukee County, Wisconsin, is home to the state’s largest city, the county seat
of Milwaukee. With a population of approximately 955,200, it is the most populous county in Wisconsin and the 45th most populous in the United States. PRJ’s
work in Milwaukee County began in 2006 under the leadership of District Attorney E. Michael McCann. With DA McCann’s retirement after 37 years in office,
John T. Chisholm was elected district attorney and took office in 2007. District Attorney Chisholm has since been an active partner with PRJ and other initiatives
involving fairness, efficiency, and data-driven management.3
In partnering with the Milwaukee County District Attorney’s Office (MCDA),
PRJ sought to help the office to:
PRJ’s partnership
in Milwaukee
County became
a springboard
for outreach to
other prosecutors’
offices interested in
collaborating with
or replicating the
project.
build its technology capacity;
>
analyze key discretion points;
> c onduct outreach to prosecutors and community stakeholders
about the work; and
>
disseminate the research findings to the broader public.
To achieve the first objective of building MCDA’s technology capacity, PRJ
developed a list of recommendations on how to improve the office’s existing
electronic case-management system, known as Prosecutor Technology for Case
Tracking (PROTECT), and ensure its efficient use by MCDA prosecutors. To better
understand the effects of the office’s decision making, PRJ researchers analyzed
prosecutorial discretion points by reviewing the initial screening decision for
nine of the most common offenses MCDA handled and the plea offers for a
sample of cases for four offenses: possession of drug paraphernalia, prostitution, resisting or obstructing an officer, and domestic violence.
PRJ researchers found that in six of the nine categories of offenses examined,
the cases against blacks were declined at a slightly higher percentage than
3
16
>
For a more detailed discussion of PRJ’s work with MCDA, see Davis, 2013, pp. 839-844.
A Prosecutor’s Guide for Advancing Racial Equity
125
those against whites. The results were reversed, however, in the area of public
order and drug offenses. Further examination of the data revealed:
>
for possession of drug paraphernalia, prosecutors declined to prosecute
41 percent of whites arrested, compared to 27 percent of blacks;
>
for prostitution, black female defendants were more likely to be
charged than white defendants but the odds of receiving deferred
prosecution were 10 percent higher for black defendants;
>
for resisting or obstructing an officer, most of the defendants charged
were black (77 percent), male (79 percent), and in custody (80 percent of
blacks and 66 percent of whites); and
>
for domestic violence, the odds of charging in cases involving black victims were 16 percent lower than in cases involving white victims, and
in cases involving black defendants and white victims, the odds were
34 percent higher that charges would be brought than in cases with a
white defendant and white victim.
Beyond building a greater organizational understanding of MCDA’s decision
making and enhancing the office’s data-management system, PRJ’s partnership in Milwaukee County led to a number of significant policy changes within
MCDA, including new charging instructions and trainings for prosecutors.
DA Chisholm, with PRJ researchers, also participated in community meetings
where he discussed his office’s work with PRJ, the research findings, and the
new policies and practices he put into place in response to them.
The partnership with MCDA also became a springboard for outreach to other
prosecutors’ offices interested in collaborating with or replicating the project.
With the help of DA Chisholm, PRJ successfully enlisted and obtained support
from other district attorneys, including Cyrus R. Vance, Jr., District Attorney of
New York County; George Gascón, District Attorney of San Francisco; and Joe
Kelly, County Attorney of Nebraska’s Lancaster County. DA Chisholm has also
advocated for racial impact research with federal prosecutors. Finally, with DA
Chisholm’s approval, the research findings from Milwaukee County have been
disseminated widely through articles and at national conferences and professional meetings.
New York County, New York
Starting in January 2012, Vera partnered with Manhattan District Attorney
Vance on an National Institute of Justice-funded study examining racial and
ethnic disparities in criminal case outcomes in Manhattan. The two-year study,
which analyzed more than 200,000 cases, focused on the role of prosecutors
during several points of a criminal case—case acceptance for prosecution,
dismissals, pretrial detention, plea bargaining, and sentencing recommendations—and whether prosecutorial discretion contributes to racially and ethnically disparate outcomes. While the best predictors of case outcomes were
factors that directly pertained to legal aspects of a case—including the seri-
While the best
predictors of case
outcomes were
factors that directly
pertained to legal
aspects of a case,
the research in
Manhattan County
also found that race
remained a factor in
case outcomes.
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17
ousness of the charge, the defendant’s prior record, and the offense type—the
research also found that race remained a factor in case outcomes.
The partnership allowed Vera to place two to three researchers, depending
on the phase of the project, at The New York County District Attorney’s Office
(DANY) for 20 months to work closely with DANY staff and analyze felony and
misdemeanor cases disposed in 2010 and 2011. The study began in January
2012. It aimed to explore the influence of defendants’ race and ethnicity on case
acceptance for prosecution; detention status; plea offers to a lesser charge and
custodial punishment offers; case dismissals; sentencing; and charge dynamics while considering a host of other factors influencing prosecutorial decision
making (e.g., prior record or charge seriousness). The project involved:
>
evaluating and analyzing existing administrative data;
>
conducting prosecutorial semi-structured interviews to better
understand case processing and data limitations;
>
collecting additional data from a sample of 2,409 case files;
>
hosting meetings to discuss research findings and their policy
implications; and
>
disseminating findings through reports, peer-reviewed publications,
and conference presentations.
The study found that DANY prosecutes nearly all cases brought by the police,
with no noticeable racial or ethnic differences at case screening. For subsequent decisions, disparities varied by discretionary point and offense category.
For all offenses combined, compared to similarly situated white defendants,
black and Latino defendants were more likely to be detained at arraignment
(remanded or have bail set, but not met), to receive a custodial sentence offer
as a result of the plea bargaining process, and to be incarcerated, but they were
also more likely to have their cases dismissed. In terms of offense categories,
compared to similarly situated white defendants:
>
Blacks and Latinos charged with misdemeanor drug offenses were
more likely to have their cases dismissed.
>
Blacks and Latinos charged with misdemeanor person offenses or
misdemeanor drug offenses were more likely to be detained at arraignment.
>
Blacks and Latinos charged with drug offenses were more likely to
receive more punitive plea offers and custodial sentences.
>
Asian defendants had the most favorable outcomes across all discretionary points, as they were less likely to be detained, receive custodial
offers, and be incarcerated. Asian defendants received particularly favorable outcomes for misdemeanor property offenses (such as larceny
and criminal trespass).
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127
Vera and DANY jointly announced the findings of the study in July 2014,
and DA Vance said that his office is “committed to implementing preventative strategies to reduce any unintended racial and ethnic disparities that
exist.” Even before the publication of the study’s results, DA Vance had
undertaken various steps to reducing disparities, including the appointment
of a Chief Diversity Officer and a Diversity Committee to develop creative approaches to enhancing workforce diversity and ensuring that DANY maintains a culture of diversity. The office has also committed to requiring all
assistant district attorneys to attend implicit bias training.
For detailed information on the partnership with DANY and research findings, see New York County resources in Appendix D, page 41.
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Appendix A
Glossary of Research Terms
Data file—A collection of related items of information that is
composed of separate elements but can be manipulated as a
unit by a computer.
Data set—A single data file or a collection of related data
files brought together to serve a common purpose.
Hierarchical model—A type of regression model for data
that are nested in levels (hierarchies), sometimes also called
a multilevel model. For example, a study of the factors that
influence prosecutors’ decisions might examine plea offers by first choosing teams, then prosecutors, then cases
handled by each prosecutor, then defendants in each case. In
this example, defendants can be viewed as nested within a
case, cases as nested within a prosecutor, and prosecutors as
nested within a team. Hierarchical models take nesting into
account in estimating the influence of higher-level characteristics on lower level outcomes. In this example, that might
include estimating the influence of prosecutor characteristics
on plea offers.
Hierarchical linear model—A hierarchical regression model
in which the relationships between explanatory variables and
the outcome at the lowest level in the hierarchy are assumed
to be linear. An example would be variables scaled so that a
given increase or decrease in the seriousness of prior criminal
record is associated with the same change in sentence length
at all levels of the seriousness scale.
Hierarchical nonlinear model—A regression model in which
the relationships between explanatory variables and the
outcomes at the lowest level in the hierarchy are assumed
to be nonlinear. This is the case for the situation in which the
outcome is expressed as a probability, such as the probability
a defendant will be convicted.
Multivariate analysis—Any statistical technique used to
analyze associations among more than two variables—often
an outcome variable and two or more explanatory variables.
Usually contrasted with univariate analysis—involving only
a single variable—and bivariate analysis—involving relationships between pairs of variables.
Quantitative data—Numerical and statistical information.
Researchers use it for a range of purposes including doing
simple counts and calculating percentages as well as more
complex procedures such as multivariate analysis.
Qualitative data—Narrative information from interviews,
open-ended questionnaires, focus group discussions, review
of documents, and researcher notes on direct observations.
It complements and allows for a deeper understanding of
quantitative data by giving it context, provides insight into
issues and processes that would be difficult to measure
quantitatively given the existing state of knowledge, often
suggests questions for future research, and can provide the
basis for development of quantitative measures.
Regression model—Refers to a wide array of analytic techniques and approaches. Generally, it is an analysis of the relationship between an outcome of interest, such as accepting
a case for prosecution, and a set of variables related to the
outcome, such as strength of the evidence and prior criminal
record, and a term that represents the influence of random
variables not in the model.
SAS—A statistical software package used by researchers for
a broad variety of basic and advanced statistical analyses.
STATA—A statistical software package used by researchers
because it includes facilities for conducting a variety of basic
and advanced statistical analyses.
SPSS (Statistical Package for the Social Sciences)—A Windows-based statistical software package used by researchers
and other data analysts to handle large data files with userfriendly facilities for data entry, data editing, file manipulation, tables and graphs, and the most commonly used basic
and advanced statistical analyses.
R—A web-based structure for sharing statistical software in
the public domain. An increasingly popular source of advanced statistical software, particularly specialized software
that is not included in popular commercial software packages
or is otherwise only available at high cost.
Statistical power analysis—An analysis used to estimate the
likelihood of detecting an effect of a given magnitude in a
sample of a certain size, when the effect is actually present in
the population from which the sample is drawn; or to determine what sample size would be necessary to have a specified likelihood of detecting an effect of a given magnitude,
when the effect is actually present in the population from
which the sample is drawn.
Structured query language (SQL)—A standardized way to
communicate with a database.
Unique identifier—A numeric or alphanumeric string that is
associated with a single entity within a given system.
Variable—A characteristic, number, or quantity that changes
over time, or takes different values in different situations.
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Appendix B
Recommended Contents of a Prosecutor’s Case-Tracking System
This appendix provides examples of the kinds of
standardized data elements a computerized tracking
system should include to support racial disparity
research, as well as case tracking for internal
administrative purposes. It does not address all of the
information a local case-management system might
require for other purposes. For example, it does not
include things like personnel information, workload
tracking, scheduling of court appearances, provisions for
storage of scanned documents, or information required
for automated production of required legal documents.
Data collection and management
Based on PRJ’s experience, we offer the following
recommendations for maximizing the capacity of your
office’s system to capture data that reflects discretionary
decisions and management practices. These suggestions
are not exhaustive–your research partner may suggest
others. They do, however, capture basic information
about the important stages in the life of a criminal
prosecution—information that is essential to determining
how cases proceed through an office and whether bias
is playing an unintended role in how they are handled.
Among the benefits of working with a research team is
that you can collaborate on producing case-management
systems tailored to your office’s needs.
> Record the outcome of each important decision. In
order to identify sources of disparity and determine
what changes in policies or procedures could promote
fairer outcomes, it is necessary to examine decisions at
each step in the processing of a case. The important decision points in your office may differ from those in other
jurisdictions because of differences in criminal procedure
law or local policies and may even be different for different units or crime types within your office. Typically,
important decisions include bail and pretrial detention
recommendations, whether to accept or reject a case
for prosecution, whether to divert a case to an alterna-
22
A Prosecutor’s Guide for Advancing Racial Equity
tive process, what charges to file initially, whether to
dismiss or amend some or all of the filed charges, what
plea offer(s) to present to the defendant (which may or
may not include sentence recommendations), the use of
sentence enhancers, and, in the case of felonies, what
charges, if any, to present to a grand jury.
Whatever the precise process in your office, your
system should record the outcome of each decision that
determines the course of a case, together with information about the characteristics or circumstances that
support the decision. Additionally, in order to examine
any discretionary decision, your system must be able
to identify and distinguish those case outcomes over
which prosecutors had or lacked discretion. Therefore,
for each discretionary decision, it is important to capture
which defendants would have been eligible to receive
certain outcomes under the law (or according to internal
office policies) as well as the actual outcomes received.
For example, if your system currently records whether
a case received deferred prosecution or diversion, in
order to accurately evaluate these discretionary decisions, your system should also include variables to flag
all cases eligible to receive such outcomes.
The following section explains some of the major
types of data you should capture. The second part of
Appendix B offers suggestions for specific data elements to be recorded for each type.
>Record the disposition of each charge at each stage
that involves a charging decision. For example, for
initial case screening, arrest charges and/or charges
brought to the prosecutor for consideration should be
recorded, and the system should record which of those
charges are accepted for prosecution, which ones are
rejected, and reasons for rejection. Charging decisions may not occur in a simple sequence—decisions
about potential dismissal of the entire case, charges
requiring guilty pleas in plea offers, and charges to
present to a grand jury may all occur in parallel, and
both dismissals and plea offers can take place at vari-
131
ous stages—but information should be recorded in a
way that makes it possible to determine what charges
were under consideration and what charges were carried forward in each process.
>Record the presence and quality of evidence. The
strength of evidence is one of the most important
considerations in deciding whether to accept a case for
prosecution and, if so, what charges to file and what
plea offers to present to defendants. Few prosecutors’
case-management systems record information about
evidence in a standardized format. More typically, information about case evidence is incorporated as scans of
narrative documents, such as police reports and discovery documents, or is only available from paper case files.
However, prior analyses by Vera researchers found that
information about the mere presence of evidence coded
from police reports in paper case files and prosecutors’
ratings of strength of evidence were strong predictors
of case outcomes, especially for the initial screening and
charging decisions. If information about the presence
and dispositive value of evidence can be incorporated in
a standardized format in your office’s case-management
system, that would greatly facilitate quantitative analyses designed to better understand how the influence of
evidence interacts with the potential influence of race.
>Record defendant prior record and probation status. It is useful to record several relevant measures
of defendants’ prior record, including the number of
prior citations, arrests, criminal cases, convictions, and
prior sentences to probation, jail, or prison. Distinguish
between prior felonies and misdemeanors. Keep track
of different categories of priors (for example, drug,
robbery, burglary, domestic violence, weapons, etc.)
Also, record defendants’ probation or parole status at
the time of offense. The most efficient and most flexible
way to record this type of information in an automated
system—rather than manually reviewing histories to
tally the number of events of each type—is to list each
prior arrest separately together with information such as
arrest charges, dispositions, conviction charges, sentences, and associated dates. Then the events can be tallied
by computer in whatever way suits a particular purpose.
>Record pretrial custody status. Prior research has
shown that pretrial detention affects virtually every
subsequent decision, and the influence of detention,
per se, is in addition to the fact that some of the same
factors influence both the detention decision and subsequent charging and sentencing decisions. Your office’s system should record defendants’ custody status
at the time of initial screening as well as defendants’
custody status post-arraignment and at subsequent
stages.
>Record defendant and victim demographic and
socioeconomic characteristics. Many offices do not
systematically record information that would assist researchers in understanding the extent to which economic factors may contribute to disparities in case outcomes.
To the extent possible, your system should capture
defendant and victim demographic and socioeconomic
characteristics. Appendix B lists a number of demographic and socioeconomic characteristics of defendants
and victims that you should consider recording.
>Record plea offers. Information about plea offers
is hard to capture and analyze in a meaningful way
because offers are subject to change throughout case
processing; often those changes occur within the
dynamic environment of verbal negotiations. If your
office does not currently capture data about plea offers, you may wish to include variables in your casemanagement system such as those suggested in the
tables in the second part of Appendix B. These include
charge offer, punishment offer, specific conditions,
general conditions, and miscellaneous other items.
>Record case status at the initial screening stage and
separately at each later stage. Don’t overwrite case
status: deleting old information as newer information
is entered into an electronic case-management system increases the potential for obscuring important
information about the chronology of process decisions
or changes. For example, if a defendant is released on
bail at arraignment but remanded to detention following indictment, the custody status at each point should
be retained. Similarly, if charge is amended after initial
filing, both the original charge and the amended
charge should be retained. Recording case status at
each discretionary stage in the case-processing continuum yields invaluable information for researchers
and for the organizational record.
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>Make data fields mutually exclusive. All data-field
entry options should be mutually exclusive to ensure
accurate interpretation of the information captured.
For example, race and ethnicity should either be
coded as separate attributes, or, if they are combined,
they should be defined such that only one category
applies to a given person (for example, Hispanic,
non-Hispanic white, or non-Hispanic black—not simply
Hispanic, white, or black). Similarly, if crime type of top
charge is entered, the crime types should be defined
in a way that a specific crime could not correctly be
classified in more than one category.
>Develop standard office data-entry protocols and
training. Because any system is only as good as those
who use it, you should standardize your office’s dataentry protocols and train your staff in their thorough
and consistent use.
General Considerations for your
research team
Units of Count. The information needed in a good case
tracking system may pertain to the case as a whole
(for example, docket number, screening decision), one
or more defendants (such as race), an unpredictable
number of victims and witnesses (for example,
relationship to the defendant), an unpredictable number
of charges (for example, charge code and statutory
classification), an unpredictable number of items of
evidence (for example, defendant’s statement, lab
report, stolen property), and an unpredictable number
of events in the defendant’s criminal history (such as
prior convictions, prior sentences). These are often
called “units of count,” and they govern how data
elements are organized into “record types” or “tables”
in a computerized database.
Many jurisdictions find it convenient to adopt
defendant-within-case (D-C) as the basic unit of count
for case tracking, and to assign a unique tracking
number (court number or docket number) to each D-C.
Information with other natural units of count must then
be linked to D-C records or summarized to the D-C level
for the purpose of tracking “the case.” For example,
a system may summarize prior record by recording or
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displaying counts of prior events (such as number of
prior felony convictions, number of prior sentences to
probation, etc.), or the system may record and display
a complete list of prior record events along with details
of each event (including such details as arrest date, top
charge, and disposition).
Data Entry vs. Reports. It is most efficient and flexible
to enter information in its natural unit of count. One
of the advantages of a computerized system is that
summarizing information to the case level can be
automated, and information can be summarized
differently for different purposes. For example, if a
complete list of prior record events is entered with
appropriate details, the system can count prior events in
as many different ways as needed (such as the number
of prior arrests for each specific crime type of interest or
number of different crime types in a defendant’s history).
It usually is not necessary for data to be summarized
manually prior to data entry to match the types of
summary information desired for the screen displays
or printed reports used to monitor or analyze case
processing.
Avoiding Duplication of Data Entry. It is important that
an automated case-management system be designed to
reduce workload, not increase it. To the extent possible,
a particular item of information should only be entered
once, and the system should be designed to copy that
information automatically if it needs to be recorded
in other places or included on paper documents. For
example, rather than requiring that charges be entered
at each stage (arrest, initial filing, plea offer, indictment,
conviction), some systems provide an easy way to carry
charges forward for as long as they remain active,
requiring additional data entry only when charges are
added or amended. Some systems also are able to
capture information automatically from other systems—
this could include, for example, capturing prosecutor
characteristics from a personnel system, capturing arrest
charge details and information about physical evidence
from a law enforcement system, capturing information
about pretrial detention from a jail-management system,
or capturing information about prior record from an
automated criminal-history system.
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Sample Tables. The tables and illustrative data elements
presented on the following pages are constructed under
the assumption that the core unit of count for case
tracking is defendant-within-case. However, items of
information are specified and assumed to be recorded in
their natural units of count, and the tables are organized
in a way intended to minimize duplication of information
across components. The tables are separated into
two groups: a group that relates to important case
characteristics, and a group that relates to the outcomes
of important case processing decisions.
This is not the only useful way to organize a case-
tracking system. While it cites a fairly comprehensive
set of information domains and data elements that
are highly desirable for supporting case tracking,
your office may not be able to incorporate all of the
suggested information. Local needs and existing local
resources may suggest other designs that provide similar
capabilities in a way that is more practical for your office.
Notice that some of the items within a table may be
repeated for an unpredictable number of instances (for
each of several witnesses, for example). While this can
be cumbersome to implement on paper forms, it usually
is relatively easy to implement in a computerized system.
Characteristics of the Case
Table 1: Identifiers and Selected Summary Information1
Unique ID for a defendant-case (D-C) combination (e.g, a court tracking number)2
Unique case ID for a set of related D-Cs prosecuted together
Defendant-case identifier(s) for other D-Cs in the case
Repeat for each D-C
Unique person ID for the defendant
Date the D-C was presented (“brought”) for initial screening
Case closing date
Source of referral (e.g, police, magistrate, grand jury, citizen complaint)
drop - down menu
Referring police department, if applicable
drop - down menu
Codefendant(s) unique person ID and D-C tracking number
Repeat for each codefendant
Crime code for top charge presented (specific crime as specified in statute)3
Crime type for top charge presented
drop - down menu
Statutory classification of top charge presented
drop - down menu
Police incident report ID number(s)
Repeat for each incident
Pre-existing complaint number(s), if applicable4
Repeat for each complaint
Defense counsel name
Type of defense counsel public defender / court appointed / private
NOTES:
1.These are examples; your office may want to include additional summary information in a summary table, even if it is
duplicated in other tables. If so, it should be copied from other tables, not entered again for summary purposes.
2.This table would include one record for each defendant-case combination. Each record would include the data elements
listed above.
3.More detailed charging information is specified in Table 6: Charging History.
4. For example, from magistrates’ review or grand jury investigations.
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Table 2a: Defendant Characteristics1
Unique person identifier
Unique case identifier
Unique defendant-case identifier
Defendant name
Defendant date of birth
Defendant race
drop - down menu
Defendant ethnicity
drop - down menu
Defendant gender
drop - down menu
Defendant’s educational level
drop - down menu
Defendant’s employment status
drop - down menu
Defendant’s source(s) of income
drop - down menu
Defendant income level
drop - down menu
Defendant’s home address: street address
city
state
zip code
NOTES:
1.Table 2a would include one record for each defendant, with identifiers linking the defendant information to case or
defendant-case records.
Table 2b: Victim Characteristics1
Unique case identifier
Unique defendant-case identifier
Victim_1: Unique victim number within case
Name
Date of birth
Race
drop - down menu
Ethnicity
drop - down menu
Gender
drop - down menu
Victim’s relationship to defendant
Would be willing to testify at
trial?2
drop - down menu
yes
/no /unknown
Repeat the above for each victim in the case
NOTES:
1.Table 2b would include one record for each victim, with identifiers linking the victim information to case or defendantcase records.
2.If practical, it would be good to record the history of the victim’s continued willingness to testify at trial as of each
decision point—for example, at the time of initial screening, initial plea offer, final plea offer, grand jury presentation (if
applicable), and trial (if applicable).
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Table 2c: Witness Characteristics1, 2
Unique case identifier
Witness_1: Unique witness number within case
Name
Date of birth
Race
drop - down menu
Ethnicity
drop - down menu
Gender
drop - down menu
Witness’s relationship to defendant
Would be willing to testify at
trial?3
drop - down menu
yes
/no /unknown
Repeat the above for each witness in the case
NOTES:
1.For this purpose, “witness” includes both persons who witnessed the crime and other persons who provide information
relating to the facts of the case. “Expert witnesses” are addressed separately in Table 2d.
2.Table 2c would include one record for each witness, with an identifier linking the victim information to case records.
3.If practical, it would be good to record the history of the witness’s continued willingness to testify at trial as of each
decision point—for example, at the time of initial screening, initial plea offer, final plea offer, grand jury presentation
(if applicable), and trial (if applicable).
Table 2d: Expert Witnesses1
Unique case identifier
Expert witness_1: Name
Subject matter expertise of expert witness
Description of subject matter expertise
drop - down menu
free field entry
Repeat the above for each expert witness in the case
NOTES:
1.Table 2d would include one record for each expert witness in the case, with an identifier linking the witness information to
case records.
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In the past, the availability and quality of evidence has rarely been captured and recorded in standardized formats in
prosecutors’ case-management systems. Though there is little prior experience to guide its design, developing this
capability for your system would represent a significant advance in the ability to understand when and how evidence
interacts with other factors, both for racial disparity research and for internal administrative purposes.
Table 3: Evidence1
Record type
item record or summary record
Unique case identifier
Unique defendant-case identifier
Item-level records
Item_1: Item number, unique within defendant-case (D-C)
Source of evidence2
Type of
drop - down menu
evidence3
drop - down menu
Repeat above for each item of evidence
Summary records4
Evidence supports elements of alleged crime_1?
all elements
/ some / none )
Evidence supports defendant responsibility for crime_1?
Repeat preceding items for each alleged crime in the D-C
yes
/ no / questionable
Evidence is sufficient for conviction of at least one alleged crime?
yes
/ no / questionable
NOTES:
1.Table 3 could include one record for each individual item of evidence, plus a summary record, linked to defendant-case
by a unique D-C identifier. Alternatively, there could be separate tables for item-level records and summary records.
2.Sources of evidence could include police incident reports, lab reports, physical evidence collected by police, statements
resulting from prosecutors’ interviews of witnesses, evidence cited in discovery documents, etc. The willingness of victims
and witnesses to testify at trial is covered in Tables 2b and 2c, above. The categories you would record would depend on
laws, practices, and availability of information in your jurisdiction.
3.The drop-down menu of potential types of evidence could be quite long, though the number of different items of
evidence available in a given case may be much smaller. In some prior research, Vera has coded the presence of evidence
from paper case records in categories such as the following: guns and ammo, other weapons, stolen property, burglars’
tools, cash, motor vehicles, DNA, fingerprints, bodily fluids, drugs and drug paraphernalia, financial records, phone
records, other relevant official records, correspondence, notes and calendars, computer files, medical records, victims’
statements, video and audio recordings, photos, confessions and other defendant statements, clothing (other than
stolen property), damaged property, forged or counterfeit instruments, lab reports, search warrants, and eyewitness
identification of perpetrators. In one of the jurisdictions partnering with Vera, much of this information is recorded in the
police incident report, which soon will be shared electronically with other criminal justice agencies.
4.Summary records could be restricted to status at initial filing or duplicated for final status as well.
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Table 4: Defendant Criminal History1
Unique person identifier
Unique case identifier
Unique defendant-case identifier
Event_1: Event type
prior case initiated by arrest or prior term served
Arrest date (for cases initiated by arrest)
Top arrest charge (for cases initiated by arrest)
Statutory classification of top arrest charge
drop - down menu
charges2
Indicators for types of underlying arrest
(an indicator field for each type of interest)
Conviction date (for cases initiated by arrest)
Top conviction charge (for cases initiated by arrest)
Statutory classification of top conviction charge
Indicators for types of underlying conviction charges
(an indicator field for each type of interest)
Sentence date (for cases initiated by arrest)
Most serious sentence type
drop - down menu
Sentence length for most serious sentence type
standardized formats
Type of prior term served (e.g., probation, jail, prison, post-release supervision)
Date of admission
Date of discharge
On probation at the time of the current offense?
yes / no
On post-release supervision at the time of the current offense?
yes / no
Repeat the above for each event in the defendant’s
history3
NOTES:
1.Table 4 would include a record for each event in the defendant’s criminal history, where “events” would include arrests
and the resulting dispositions and sentences and prior terms of probation, jail, or prison. Alleged violations of probation
or parole can be incorporated in the “arrest charge” fields. Either the information pertaining to events initiated by arrest
or the information pertaining to time served in custody (but not both) would be recorded in a given event record.
2.In reviewing prior record, attorneys and researchers may need to be aware of the existence of underlying charges that
could affect charging options (violent offense, drug offense, crime against children, weapons offense, etc.). If it’s sufficient
for your purposes, using such indicators can be more concise that listing all charges for each prior event.
3.Recording relevant details for each event makes it unnecessary to count types of events manually (prior misdemeanors,
prior felonies, prior convictions for specific crime types of interest, etc.); you can generate such counts by computer.
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Table 5: Special Circumstances1
Unique person identifier
Unique case identifier
Unique defendant-case identifier
Mitigating circumstances
Provide fields for up to some fixed number of mitigating circumstances
drop - down menu
Aggravating circumstances Provide fields for up to some fixed number of aggravating circumstances
drop - down menu
Sentence enhancers
from
Provide fields for up to some fixed number of enhancers
drop - down menu of enhancers defined in statute
Defendant successfully participating in relevant treatment program?
yes
/
no
Defendant has strong support from family and/or community?
yes
/
no
Proposed disposition of the case will not increase the likelihood of recidivism?
yes
/
no
(etc., as relevant to your office)
NOTES:
1.Tentatively, Table 5 could include a single record for each defendant-case, with a fixed number of coded fields in the
record for entering mitigating circumstances, aggravating circumstances, and sentence enhancers, plus provision for
flagging other salient circumstances. Special circumstances that guide decisions in your office will depend on state law
and office policies, and may be different than the special circumstances that guide decisions in other jurisdictions. The
items listed in Table 5 merely illustrate some possibilities.
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139
Decision History
The key decisions in your office or the order in which they occur may be somewhat different than are assumed in the
tables that follow. Nevertheless, you should have the capability to track similar information across whatever are the
key decision points in your office.
Table 6: Charging History1
Unique case identifier (included in each of the records outlined below)
Unique defendant-case identifier (included in each of the records outlined below)
Arrest-charge records
Arrest date
Arrest charge_1: crime code (e.g., statute number)
crime description
standardized labels
crime type2
statutory
drop - down menu
classification2
special crime type
drop - down menu
designation2, 3
drop - down menu
Repeat arrest charge record for each arrest charge
Initial-filing-charge records
Filed charge_1: crime code (e.g., statute number)
crime description
crime
statutory
drop - down menu
classification2
special crime type
standardized labels
type2
drop - down menu
designation2, 3
drop - down menu
Repeat filed charge record for each charge filed at initial filing
Rejected-charge records4
Rejected charge_1: crime code (e.g., statute number)
Primary reason for rejection
drop - down menu
Secondary reason for rejection
drop - down menu
Repeat rejected charge record for each charge rejected at initial filing
Initial-plea-offer-charge records5
Initial plea offer charge_1: crime code (e.g., statute number)
Defendant must plead guilty?
yes
/ no / will
Reason for dropping charge, if applicable
drop charge
drop - down menu
Repeat initial plea offer charge record for each charge addressed in the initial plea offer
Final-plea-offer-charge records (if different from initial offer)6
Final plea offer charge_1: crime code (e.g., statute number)
Defendant must plead guilty?
yes
/ no / will
Reason for dropping charge, if applicable
drop charge
drop - down menu
Repeat final plea offer charge record for each charge addressed in the final plea offer
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Table 6: Charging History1 (continued)
Grand-jury-presentation records7
Grand jury presentation charge_1: crime code (e.g., statute number)
grand jury decision
indicted
Repeat grand jury presentation charge record for each charge presented to the grand jury
Dismissed-charge records
/
no true bill
Dismissed charge_1: crime code (e.g., statute number)
stage at which charge was dismissed8
drop - down menu
primary reason for dismissal
drop - down menu
secondary reason for dismissal
drop - down menu
voluntary dismissal?
yes , prosecutor ’ s motion
/
no , imposed by judge
Repeat dismissed charge record for each charge dismissed after initial filing
Conviction-charge records
Conviction charge_1: crime code (e.g., statute number)
sentence type
sentence
details9
drop - down menu
standardized formats
Repeat record for each conviction charge
NOTES:
1.Table 6 includes a record for each charge retained or added/amended at each key decision point. The charge listed as
charge_1 at each decision point should be the top charge active at that point.
2.In a computerized case-tracking system, crime description, crime type, statutory classification, and special crime type
designations can usually be filled in automatically by the system, once the specific crime code is entered. Therefore, to
reduce the length of Table 6, only the crime code is listed explicitly for the charge records at the later decision points.
3.Special crime type designations will depend on state law and your office policies. Examples of types warranting special
attention in your office might include violent offense, drug offense, weapons offense, household burglary, DUI, domestic
violence, etc.
4.Rejected charges are charges that were presented to the prosecutor for possible filing (arrest charges, for example), but
which the prosecutor chose not to file.
5.Initial plea offer charge records include a record for each charge addressed in the initial plea offer, regardless of
whether a guilty plea is required or the prosecutor is offering to drop the charge.
6.Depending on state laws and your office policies, plea offers may change at any time between initial filing and final case
disposition. However, your office may find it sufficient to record only the initial plea offer or only the initial offer and the
final offer.
7.There should be a record for each charge presented to the grand jury.
8.Charges may be dismissed anytime between initial filing and final case disposition. Depending on state law and your
office’s procedures, coded categories for the stage at which a charge was dismissed might include periods or decision
points such as dismissed at felony hearings, dismissed pursuant to a plea agreement, dismissed during grand jury
preparation, dismissed pursuant to a modified plea offer following indictment, dismissed at trial, etc.
9.The formats for sentence details will differ depending on sentence type.
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141
Table 7: Pretrial Detention
Unique case identifier
Unique defendant-case identifier
Arrest date
Arraignment date
Defendant detained pre-arraignment?
yes
/
no
Responsible prosecution unit/team
drop - down menu
Responsible prosecuting attorney
drop - down menu
Post-arraignment custody status recommended by prosecutor
ror
/ bond / bail / remand
Post-arraignment custody status ordered
ror
/ bond / bail / remand
Bail/Bond amount recommended by prosecutor
Bail/Bond amount ordered
Did defendant pay bail/bond?
yes
/
no
Did prosecutor recommend pretrial supervision?
yes
/
no
Was pretrial supervision ordered?
yes
/
no
Date of initial release on bail/bond
Pretrial release conditions
Repeat field for each condition imposed
If initially released, was defendant subsequently remanded?
drop - down menu
yes
/
no
Date of subsequent remand
Case processing stage of subsequent remand
drop - down menu
Reason for subsequent remand
drop - down menu
Table 8: Case-level Screening Details
Unique case identifier
Unique defendant-case identifier
Screening date
Responsible prosecution unit/team
drop - down menu
Responsible prosecuting attorney
drop - down menu
Case accepted for prosecution?
yes
/
no
If rejected, primary reason
drop - down menu
If rejected, secondary reason
drop - down menu
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Table 9a: Case-level Plea Offer Details – initial offer
Unique case identifier (included in each of the records outlined below)
Unique defendant-case identifier (included in each of the records outlined below)
Responsible prosecution unit/team
drop - down menu
Responsible prosecuting attorney
drop - down menu
Date of plea offer letter
Plea offer accepted by defendant?
yes
/
no
Charge offer?
yes
/
no
Sentence offer?
yes
/
no
Deferred prosecution agreement?
yes
/
no
Offer to dismiss penalty enhancer?
yes
/
no
Plea Offer Type Record
Penalty enhancer to be dismissed
applicable statute number
Repeat field for each enhancer to be dismissed
Charge-level Sentence Offer Record
Maximum term of incarceration for guilty plea on charge_1
months
Incarceration to be served in jail or prison?
Maximum probation supervision term for guilty plea on charge_1
months
Maximum period of post-release supervision for guilty plea on charge_1
months
Maximum fine amount for guilty plea on charge_1
Repeat charge-level sentence offer record for each charge requiring guilty plea
Aggregate-level Sentence Offer Record
Number of charges requiring guilty plea
Sentences for plea offer charges to be served concurrently or consecutively?
Concurrent or consecutive to any other sentence being served?
Maximum aggregate term of incarceration
months
Incarceration to be served in jail or prison?
Maximum aggregate period of probation supervision
months
Maximum aggregate period of post-release supervision
months
Maximum aggregate fine amount
General Conditions Record1
Expiration condition
drop - down menu
Expiration date
Additional charges or penalty enhancer if no agreement?
yes
/
no
State reserves right to renegotiate agreement if condition(s) violated?
yes
/
no
State reserves right to void agreement if condition(s) violated?
yes
/
no
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Table 9a: (continued)
Not committing any new criminal offenses
yes
/
no
Defendant must resolve open criminal cases
yes
/
no
No criminal record not previously disclosed
yes
/
no
Acceptance of responsibility at plea and sentencing
yes
/
no
Appearing at all court proceedings
yes
/
no
Abiding by conditions of bail
yes
/
no
Not possessing or using illegal controlled substances
yes
/
no
Defendant’s breach of plea agreement cannot be used as basis to withdraw plea
yes
/
no
Revocation of driving privileges for specified violations
yes
/
no
No contact with co-defendants
yes
/
no
Restitution
yes
/
no
Crime victim impact statement(s) allowed
yes
/
no
No contact with victim(s)
yes
/
no
Alcohol and other drug abuse assessment and treatment
yes
/
no
Full-time work/school
yes
/
no
Absolute sobriety
yes
/
no
Random urine testing
yes
/
no
Community service
yes
/
no
Contribution to a crime prevention organization
yes
/
no
Specific Conditions Record1
Amount of restitution
Amount of contribution
NOTES:
1.Conditions that can be imposed in the plea agreement depend on state law and your office’s policies and procedures.
The conditions listed in this table are illustrations.
Table 9b: Case-level Plea Offer Details – Final offer if different from initial offer
Unique case identifier (included in each of the records outlined below)
Unique defendant-case identifier (included in each of the records outlined below)
Responsible prosecution unit/team
drop - down menu
Responsible prosecuting attorney
drop - down menu
Repeat elements of Table 9a
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Table 10: Grand Jury
Unique case identifier
Unique defendant-case identifier
Responsible prosecution unit/team
drop - down menu
Responsible prosecuting attorney
drop - down menu
Date of grand jury presentation
Number of charges presented1
Number of charges indicted1
Crime type of top indictment charge1
drop - down menu
Statutory classification of top indictment charge1
drop - down menu
NOTES:
1.In most computerized systems, top indictment charge information could be calculated automatically from the
information in Table 6: Charging History.
Table 11: Case-level Disposition Details
Unique case identifier
Unique defendant-case identifier
Responsible prosecution unit/team at final disposition
drop - down menu
Responsible prosecuting attorney at final disposition
drop - down menu
Case diverted?
yes
Type of diversion
/
no
drop - down menu
Date case diverted
Stage at which case diverted
drop - down menu
Entire case dismissed?
Voluntary dismissal?
yes
yes , upon prosecutor ’ s motion
/
/
no
no , imposed by the court
Date case dismissed
Stage at which case dismissed
drop - down menu
Primary reason for case dismissal
drop - down menu
Secondary reason for case dismissal
drop - down menu
Conviction for any charge?
Method of conviction
yes
/
no
plea or trial
Conviction date
Number of conviction charges
Crime type of top conviction charge1
drop - down menu
Statutory classification of top conviction charge1
drop - down menu
NOTES:
1.In most computerized systems, top conviction charge information could be calculated automatically from the
information in Table 6: Charging History.
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Table 12: Case-level Sentencing Details
Unique case identifier
Unique defendant-case identifier
Responsible prosecution unit/team
drop - down menu
Responsible prosecuting attorney
drop - down menu
Sentences for conviction charges to be served concurrently or consecutively?
Sentence type
drop - down menu
details1
Sentence
Repeat sentence type and sentence detail fields for each sentence type imposed2
Aggregate term of incarceration3
standardized formats
months
Incarceration to be served in prison or jail?
Incarceration to be served intermittently (e.g., weekends)?
Aggregate period of probation
supervision3
Aggregate period of post-release
Aggregate fine
supervision3
yes
/
no
months
months
amount3
NOTES:
1.The formats for sentence details will differ depending on sentence type.
2.For example, a defendant may be sentenced to jail, probation, and a fine, each of which would be recorded separately
in Table 12.
3.The sentences associated with individual charges are addressed in Table 6: Charging History.
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Appendix C
Sample Memorandum of Understanding
MEMORANDUM OF UNDERSTANDING BETWEEN THE VERA INSTITUTE OF JUSTICE, INC.
AND THE [jurisdiction] ATTORNEY’S OFFICE
This memorandum documents the understanding between the Vera Institute of Justice, Inc.
(“Vera”) and [Jurisdiction], on behalf of the [Jurisdiction] Attorney’s Office.
Vera is proposing to designate [number, description of staff] to the [Jurisdiction] Attorney’s
Office for a period of __________ in order to identify racial or ethnic disparities in case
outcomes, to work with the [Jurisdiction] Attorney’s Office to discern and review what factors
and/or specific practices, if any, may influence such outcomes, and to develop protocols,
management processes, and other strategies that will aid prosecutors in reducing or
eliminating unwarranted racial and ethnic disparities in case outcomes.
Through this collaborative process, Vera’s Prosecution and Racial Justice Program (“PRJ”)
will help the [Jurisdiction] Attorney’s Office to establish internal, data-driven management
of discretionary decisions. The [Jurisdiction] Attorney’s Office, in turn, will provide Vera with
practitioner-based knowledge of the various key factors and considerations that influence
decision-making, in order to contribute to a more accurate interpretation of the data
findings. By participating in this project, the [Jurisdiction] Attorney’s Office can serve as a
model for comparatively sized state and local prosecutors’ offices of how to deploy and
manage discretion in an equitable manner.
In consideration of the mutual understanding and goals of the parties to this Memorandum
of Understanding, the parties agree to the following:
I. Vera
1.Collecting and analyzing data. [Describe here: the data analysis activities to be
undertaken, the purpose of each activity, and the source materials required.]
2.Drafting a _________ on its findings. [Describe here: publications or other materials to
be produced, noting format, level of particularity, and their audiences. Include provisions for
the DA’s office to review and comment on the materials, specifying the time frame in which
materials must be provided and returned.]
3.Disseminating the ____________. [Designate responsibility for dissemination of the
publication(s), and state the major undertakings that will include: conferences, online
publication, etc.]
4. Funding. [Designate responsibility for securing funding to support the work and make
clear that performance of this agreement is contingent on that funding.]
II. THE [JURISDICTION] ATTORNEY’S OFFICE
1.Providing Vera researchers access to all data necessary for the analyses of discretion
reports. [State clearly what categories of data are needed—be they electronic databases,
38
A Prosecutor’s Guide for Advancing Racial Equity
147
physical files, or institutional/operational knowledge held by staff—and why, and secure the
DA’s commitment to providing them.]
2.Providing in-house office space and administrative support for [describe staff allocation]
from Vera for the study period. [State clearly what the project staff need to operate in
the DA’s office. This will vary site by site but will always include secure locations where
confidential information can be stored; it may include computers and other office supplies. If
staff will be based out of the DA’s office, clarify their employment relationship.]
3. Availability of staff of the [Jurisdiction] Attorney’s Office to Vera. [Describe the
commitment of DA staff to the project—what numbers of which levels of prosecutors should
be on the study team, what other staff (including data specialists) are required, what kind of
input is required from all, and who will serve as the primary contact.]
4.Participating in Vera’s report-drafting process. [Complimentary to §I (2), state the
obligation and opportunity for the DA’s office to participate in the project and to comment
on drafts.]
5. Working with Vera to disseminate the technical report and policy brief. [State DA’s office
commitment to assist in dissemination and its right to further distribute as it sees fit.]
III. Mutual Agreements
1.Collaborating on the partnership report. [State commitment to collaborating on report
and what report will describe (such as the partnership effort, obstacles experienced, and
solutions put into practice).]
2.Holding regular, joint meetings. [State commitment to holding regular meetings and to
review updates, discuss methodology, identify data limitations and ways to address them,
and interpret and contextualize findings.]
3. Assignment. [State whether either party may assign its rights; if so, under what
circumstances, and if not, the consequence of assignment without permission.]
4. Amendment. [State the circumstances under which the memorandum may be amended
(e.g., the amount of notice required, when it must be in writing.)]
5.Term. [State when the agreement goes into effect and the date or event (e.g., expiration
of funding grant) after which it will terminate.]
6.Mutual Indemnification. [Provide for mutual indemnification for claims arising from the
other’s negligent or willful acts.]
IV. CONFIDENTIALITY
1.Storing Data, Stripping Data, and Access to Identifiable Information. [Describe means
by which any identifiable data will be secured, how access to it will be controlled, and how
identifiers will be stripped from data (and at what point).]
148
vera institute of justice
39
2.Vera Staff Access to Data. [Limit access to all study data, identifiable or otherwise, to staff
working on the study.]
3.Prohibition on Disclosing Identifiable Data. [State commitment not to disclose identifiable
data, noting that reports and publications will present only anonymized, aggregated data
findings.]
4.Certification of Vera staff. [State the human subjects protection training undertaken by
staff who will work on the project and commit to submitting the protocol for review by and
Institutional Review Board.]
THE FOREGOING IS UNDERSTOOD, ACCEPTED, AND AGREED TO BY VERA AND
THE [Jurisdiction] ATTORNEY’S OFFICE.
[Jurisdiction] ATTORNEY’S OFFICE:
Print Name:
Title:
Signature:
Date:
VERA INSTITUTE OF JUSTICE, INC.:
Print Name:
Title:
Signature:
Date:
40
A Prosecutor’s Guide for Advancing Racial Equity
149
Appendix D
Resources on PRJ’s Work and Issues Related to
Prosecutorial Discretion
Vera’s published written work about research into prosecutorial
discretion:
Frederick, Bruce, and Don Stemen. The Anatomy of Discretion: An Analysis
of Prosecutorial Decision Making - Summary Report. New York: Vera Institute
of Justice, 2012, www.vera.org/sites/default/files/resources/downloads/
anatomy-of-discretion-summary-report.pdf.
McKenzie, Wayne, Don Stemen, Derek Coursen, and Elizabeth Farid. Using
Data to Advance Fairness in Prosecution. New York: Vera Institute of Justice,
2009, www.vera.org/pubs/prosecution-and-racial-justice-using-data-advancefairness-criminal-prosecution.
Video interviews discussing prosecutorial discretion:
Jim Parsons on Race and Prosecution in Manhattan,
www.vera.org/pubs/special/race-and-prosecution-manhattan.
Michael Jacobson and Don Stemen discuss the Anatomy of Discretion study,
www.vera.org/anatomy-discretion-podcast-1-4-interview-don-stemen.
Don Stemen and Anne J. Swern, First Assistant District Attorney for Kings
County, NY, discuss prosecutorial discretion and racial equity,
www.vera.org/anatomy-discretion-podcast-2-4-interview-anne-j-swern.
Don Stemen and Judge Theodore A. McKee, chief judge of the U.S. Court of
Appeals for the Third Circuit, discuss fairness in criminal justice outcomes,
www.vera.org/anatomy-discretion-podcast-3-4-interview-judge-theodoremckee.
Bruce Frederick and Anthony C. Thompson, professor of clinical law at New
York University, discuss the balance between strength of evidence and other
considerations, www.vera.org/anatomy-discretion-podcast-4-4-interviewanthony-c-thompson.
Illustrations of PRJ’s research and partnership model:
Race and Prosecution in Manhattan: Research Summary,
www.vera.org/sites/default/files/resources/downloads/race-and-prosecutionmanhattan-summary.pdf.
Race and Prosecution in Manhattan: Technical Report,
www.vera.org/sites/default/files/resources/downloads/race-and-prosecutionmanhattan-technical.pdf.
150
vera institute of justice
41
Race and Prosecution in Manhattan: Partnership Report,
www.vera.org/sites/default/files/resources/downloads/race-and-prosecutionmanhattan-partnership.pdf.
For background on the debate about racial disparity in the criminal
justice system:
Davis, Angela J. “In Search of Racial Justice: The Role of the Prosecutor,”
Journal of Legislation and Public Policy, 16, no. 4 (2013) p. 821,
www.nyujlpp.org/wp-content/uploads/2014/01/Davis-In-Search-of-RacialJustice-16nyujlpp821.pdf.
Davis, Angela J. Arbitrary Justice: The Power of the American Prosecutor.
New York: Oxford University Press, 2009, works.bepress.com/angela_
davis/1.
Harris, David A., “Profiling Unmasked: From Criminal Profiling to Racial
Profiling,” in Blind Goddess: A Reader on Race and Justice, edited by
Alexander Papachristou and Patricia J. Williams, New York: New Press, 2011.
Levinson, Justin D., and Robert J. Smith, eds. Implicit Racial Bias Across the
Law. New York: Cambridge University Press, 2012.
Various authors, “Racial Disparities,” The Champion, October 2012,
Washington DC: National Association of Criminal Defense Lawyers,
www.nacdl.org/Champion.aspx?id=29517&terms=tymas
For examples of local press coverage to illustrate community interest in
work on racial justice and prosecution:
“Lancaster County attorney to look at racial disparity in legal system,” by
Lori Pilger, March 25, 2014, JournalStar.com, Lincoln, Nebraska, journalstar.
com/news/local/911/lancaster-county-attorney-to-look-at-racial-disparity-inlegal/article_11e13144-9113-5e32-b444-e51b840743dc.html.
“San Francisco DA’s office launches study to prevent racial, ethnic bias in
prosecutions,” Inquirer.net, May 3, 2014.,
newsinfo.inquirer.net/599256/san-francisco-das-office-launches-study-toprevent-racial-ethnic-bias-in-prosecutions.
“How Race Skews Prosecutions,” editorial, The New York Times, July 14,
2014, www.nytimes.com/2014/07/14/opinion/how-race-skews-prosecutions.
html?partner=rssnyt&emc=rss.
42
A Prosecutor’s Guide for Advancing Racial Equity
151
Acknowledgments
This guide was made possible by partnerships with the following:
Lincoln County Attorney’s Office, Lincoln, NE
Mecklenburg County District Attorney’s Office, Charlotte, NC
Milwaukee County District Attorney’s Office, Milwaukee, WI
New York County District Attorney’s Office, New York, NY
San Diego County District Attorney’s Office, San Diego, CA
San Francisco District Attorney’s Office, San Francisco, CA
The Atlantic Philanthropies
The Ford Foundation
The Joyce Foundation
JEHT Foundation
The John S. and James L. Knight Foundation
The Lincoln Community Foundation
National Institute of Justice
Open Society Foundations
Public Welfare Foundation
City and County of San Francisco
Urban Strategies, Inc.
The Wallace Global Fund
The Z. Smith Reynolds Foundation
We thank them for their support of PRJ’s efforts to advance racial equity in prosecution. The information in this publication does not necessarily reflect the policies or opinions of these entities.
© 2014 Vera Institute of Justice. All rights reserved.
The Vera Institute of Justice combines expertise in research, demonstration projects, and technical
assistance to help leaders in government and civil society improve the systems people rely on for justice
and safety.
For more information, contact Daniel F. Wilhelm, vice president and chief program officer,
Vera Institute of Justice at [email protected].
152
Suggested Citation
Vera Institute of Justice. A Prosecutor’s Guide for Advancing Racial
Equity. New York, NY: Vera Institute of Justice, 2014.
Vera Institute of Justice
233 Broadway, 12th Floor
New York, NY 10279
Tel: (212) 334-1300
Fax: (212) 941-9407
Washington DC Office
1100 First St. NE, Suite 950
Washington, DC 20002
Tel: (202) 465-8900
Fax: (202) 408-1972
New Orleans Office
546 Carondelet St.
New Orleans, LA 70130
Tel: (504) 593-0937
Fax: (212) 941-9407
Los Angeles Office
707 Wilshire Blvd., Suite 3850
Los Angeles, CA 90017
Tel: (213) 223-2442
Fax: (213) 955-9250
153
Incarceration’s Front Door:
The Misuse of Jails in America
CENTER ON SENTENCING AND CORRECTIONS
FEBRUARY 2015
Ram Subramanian • Ruth Delaney • Stephen Roberts • Nancy Fishman • Peggy McGarry
154
FROM THE PRESIDENT
Incarceration’s Front Door addresses what is arguably one of the chief drivers of difficulty in
our troubled criminal justice system: jails.
The report’s encyclopedic examination of jail use—who’s in jail and the myriad paths leading there—is meant to inform. But it should also unnerve and incite us to action. As Vera’s
president, I observe injustice routinely. Nonetheless even I—as this report came together—
was jolted by the extent to which unconvicted people in this country are held in jail simply
because they are too poor to pay what it costs to get out. I was startled by the numbers
of people detained for behavior that stems primarily from mental illness, homelessness, or
addiction. I was dismayed by how even a brief stay in jail can be destructive to individuals,
their families, and entire communities. And I’ve been at this work for a while now.
I suspect that many readers will come to this report thinking that jail is reserved only for
those too dangerous to be released while awaiting trial or those deemed likely to flee rather
than face prosecution. Indeed, jails are necessary for some people. Yet too often we see
ordinary people, some even our neighbors, held for minor violations such as driving with
a suspended license, public intoxication, or shoplifting because they cannot afford bail as
low as $500. Single parents may lose custody of their children, sole wage-earners in families,
their jobs—while all of us, the taxpayers, pay for them to stay in jail.
Incarceration’s Front Door reviews the research and interrogates the data from a wide range
of sources to open a window on the widespread misuse of jails in America. It also draws on
Vera’s long experience in the field and examples from jurisdictions of different sizes and
compositions to suggest how the negative consequences of this misuse can be mitigated.
Indeed, this report marks a bittersweet homecoming for Vera as our very first project was
The Manhattan Bail Project, which showed that many, if not most, people accused of committing a crime can be relied on to appear in court without having to post bail or be held
until trial. The lessons we learned and shared in 1961 have not stuck nearly enough.
As the report makes clear, jails are all around us—in nearly every town and city. Yet too few
of us know who’s there or why they are there or what can be done to improve them. I hope
that Incarceration’s Front Door provides the critical insight to inspire you to find out more.
Nicholas Turner
President and Director
Vera Institute of Justice
2
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
155
Contents
4
Gateway to the criminal justice system
7
Decades of growth
11 Portrait of the jailed
12 Costs and consequences
18
Six key decision points that influence the use
and size of jails
20Arrest
25Charge
29
Pretrial release and bail
36
Case processing
38
Disposition and sentencing
41
Reentry and community supervision
46Conclusion
48Endnotes
156
VERA INSTITUTE OF JUSTICE
3
Gateway to the criminal
justice system
Though there is hardly a town without one or a big city without several, jails
are rarely on the radar of most Americans. There are more than 3,000 jails in
the United States, holding 731,000 people on any given day—more than the
population of Detroit and nearly as many people as live in San Francisco.1 This
number, high as it may be, is only a one-day snapshot. In the course of a typical
year, there are nearly 12 million jail admissions—equivalent to the populations
of Los Angeles and New York City combined and nearly 19 times the annual
admissions to state and federal prisons.2 Although in common parlance jails are
often confused with prisons—the state or federal institutions where most of
those convicted of crimes and given a sentence of imprisonment are sent—jails
are locally run facilities, primarily holding people arrested but not yet convicted, and are the place where most people land immediately following arrest.
Jails are the gateway to the formal criminal justice system in a country that
holds more people in custody than any other country on the planet.3
Intended to house only those deemed to be a danger to society or a flight risk
before trial, jails have become massive warehouses primarily for those too poor to
post even low bail or too sick for existing community resources to manage. Most
jail inmates—three out of five people—are legally presumed innocent, awaiting
Locked up: Annual admissions
Jails have a much broader reach than prisons. Although state and federal
prisons hold about twice the number of people on any given day than jails do,
jails have almost 19 times the number of annual admissions than prisons do.
4
Local jails
State & federal prisons
11,700,000
631,000
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
157
trial or resolution of their cases through plea negotiation in facilities that are
often overcrowded, noisy, and chaotic.4 (See Figure 1.) While jails do hold people
accused of serious, violent crimes, nearly 75 percent of the population of both sentenced offenders and pretrial detainees are in jail for nonviolent traffic, property,
drug, or public order offenses.5 In New York City, for example, nearly 50 percent of
cases which resulted in some jail time were for misdemeanors or lesser charges.6
In Los Angeles County, a study of the jail system in 2008 by the Vera Institute of
Justice (Vera) found that the single largest group booked into the jail consisted of
people charged with traffic and vehicular offenses.7
Although most defendants admitted to jail over the course of a year are
released within hours or days, rather than weeks or months, even a short stay
in jail is more than an inconvenience. Being detained is often the beginning of
a journey through the criminal justice system that can take many wrong turns.
Just a few days in jail can increase the likelihood of a sentence of incarceration
and the harshness of that sentence, reduce economic viability, promote future
criminal behavior, and worsen the health of those who enter—making jail a
gateway to deeper and more lasting involvement in the criminal justice system at considerable costs to the people involved and to society at large. These
costs are also borne by their families and communities, depressing economies,
contributing to increased crime, and breaking familial and social bonds. For the
disproportionately high number of those who enter jails from minority communities, or who suffer from mental illness, addiction, and homelessness, time
spent in jail exacerbates already difficult conditions and puts many on a cycle
of incarceration from which it is extremely difficult to break free.
Recent criminal justice reform efforts have focused in the main on reducing
the number of people in state prisons.8 Prompted by ballooning state correc-
Figure 1: Convicted
and unconvicted jail
inmates, 2013
38% Convicted
62% Unconvicted
Source: Todd D. Minton and Daniela Golinelli,
Jail Inmates at Midyear 2013 - Statistical Tables.
(Washington, DC: U.S. Department of Justice,
Office of Justice Programs, Bureau of Justice
Statistics, 2014), appendix table 3, p. 11
tions budgets and a plummeting crime rate, policymakers across the political
spectrum have been willing to re-examine the punitive policies that relied on
incarceration as a principal crime control strategy.9 This new policy environment has also been encouraged and buoyed by consistent public opinion polls
that show most Americans support alternatives to incarceration—particularly
for nonviolent offenses—and research demonstrating that certain types of
law-breakers can be safely and more effectively supervised in the community.10
Given the complex role jails play in compounding the manifold negative
consequences of mass incarceration in America—well acknowledged today on
both sides of the aisle—local policymakers and their constituents interested in
reducing recidivism, improving public safety, and promoting stronger, healthier communities might do well to take a hard look at how the jail in their city
or county is used. To help foster public debate and action by public officials,
this report offers an overview of the nation’s misuse of jails. It examines the
characteristics of the people who typically cycle in and out of jails; some of the
key policies that contributed to the rise in the use of jail; and the impact of jail
incarceration on individuals, families, and communities. It also looks at key
decision points where strategies can be adopted to decrease the misuse of jails
within the American criminal justice system.
158
VERA INSTITUTE OF JUSTICE
5
WHAT IS A JAIL?
The history of jails in English-speaking countries, including
America, can be traced back to twelfth-century England during
the reign of King Henry II who ordered their construction and
placed them under the control of the crown’s local government representative, the county sheriff. Their primary purpose was to detain people awaiting
trial and those convicted but awaiting punishment. The earliest reference to
jails in the United States is to the construction of a “people pen” in 1632 in
prerevolutionary Boston. Mirroring the brutal British penal codes and practices of the day, the dominant form of criminal punishment in colonial America
was corporal—with serious crimes punishable by death, physical mutilation,
branding, or whipping, and lesser offenses by public ridicule and humiliation
through the use of the stocks, the pillory, the public cage, or the ducking stool.
But with the conversion of Philadelphia’s Walnut Street Jail into the country’s
first penitentiary in 1790—as part of penal reform championed by the Quakers—incarceration as punishment soon became the default response for serious law-breaking and with it the modern prison system was born.a
Today jails are, with few exceptions, municipal or county-level confinement
facilities that are administered by local law enforcement agencies or departments of correction.b Like their historical antecedents they are used to detain
people awaiting trial who are deemed a flight risk or a danger to public safety. But many also house a range of other people caught up in the criminal
system as described below. Jails range in size from small “lock-ups” that
hold no more than a handful of people to networks of facilities, such as the
eight jails in Los Angeles County that house approximately 20,000 inmates.c
Their costs are mainly paid for by a municipality or county with reimbursements sometimes coming from the state or federal governments.
Unlike state prisons, which almost exclusively hold people serving state
sentences, jail populations are heterogeneous, making them particularly
challenging to manage.
Jails may house:
>>Pretrial detainees held from the time they are arrested until they
post bail, are released on their own recognizance or to some form of
pretrial community supervision, or until the cases against them are
settled by trial or plea.
>>Locally sentenced inmates convicted of minor crimes for which they
have received short custodial sentences, typically a year or less but
longer in some states.d
>>State sentenced inmates convicted of more serious crimes awaiting transfer to a state prison or assigned to serve their sentence in a
6
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
159
local facility due to prison overcrowding. Local jurisdictions are paid
to house these overflow inmates. This latter trend is most significant
in California, where the state department of correction is under court
order to reduce crowding in prisons.e
>>Apprehended probation violators who are either awaiting a hearing
on an alleged violation of the terms of their supervision in the community, or serving the remainder of their sentence in local confinement.
>>Apprehended parole violators awaiting a hearing on an alleged
violation or transfer back to state prison.
>>Pretrial federal detainees awaiting trial on federal charges, in jurisdictions where no federal detention beds are available. Local jurisdictions are paid to house these inmates.
>>Apprehended pretrial or sentenced inmates from other jurisdictions awaiting transfer or housed at the jail due to unavailability of
beds in the other state or local jurisdiction.
>>Immigration and Customs Enforcement (ICE) detainees held at the
request of the U.S. government pending adjudication of immigration
violations or deportation. Local jurisdictions are paid to house these
inmates.
For a brief overview of the history of jails, see http://law.jrank.org/pages/1399/Jails-Historical-perspective.html.
b
Six states—Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont—do not have
locally-run jails and instead run unified correctional systems, meaning that both prisons and jails
are under the jurisdiction of the state’s Department of Corrections. See Barbara Krauth, A Review
of the Jail Function within State Unified Corrections Systems (1997), 2, http://static.nicic.gov/
Library/014024.pdf, p. 2.
c
Vera Institute of Justice, Los Angeles County Jail Overcrowding Reduction Project, (New York:
NY: Vera Institute of Justice, 2011), i.
d
Individuals sentenced to a jail rather than a prison sentence are usually convicted of a misdemeanor—a low-level criminal offense that typically has no more than a maximum custodial
sentence of a year. Some states, such as Texas, allow jail sentences for certain felony offenders
(known as “state jail felonies”), while in other states, such as Pennsylvania, certain types of misdemeanors expose individuals to incarceration of more than one year.
e
See Brown v. Plata, 131 S.Ct. 1910 (2011).
a
Decades of growth
By every measure, the scale at which jails operate has grown dramatically over
the past three decades. The number of annual admissions nearly doubled, from
six million in 1983 to 11.7 million in 2013.11 While there are no national data on
how many unique individuals these admissions represent, data from Chicago
and New York City suggest that a small minority is responsible for upwards of
one-half of all admissions to jail—that is, some people return to jail over and
over. In Chicago, 21 percent of the people admitted to jail between 2007 and
2011 accounted for 50 percent of all admissions.12 In New York City, from 2008
160
VERA INSTITUTE OF JUSTICE
7
through mid-year 2013, just shy of 500 people were admitted to jail 18 times
or more, accounting for more than 10,000 jail admissions and 300,000 days
in jail.13 The number of people in jail on any given day has also climbed—from
224,000 people in 1983 to 731,000 in 2013, the latest year for which data are
available.14
Jail’s revolving door in New York City, 2008 - 2013
473 people were admitted
to jail 18 times or more:
> 85% charged with misdemeanor or violation
> 21% had a serious mental illness
> 99.4% had a substance use disorder
Accounting for
more than
10,000
jail admissions
2009–2013
✘✘✘✘✘✘✘
✘✘✘✘✘✘✘
✘✘✘✘✘✘✘
✘✘✘✘✘✘✘
✘✘
and more than
300,000
days in jail
The rate of confinement (that is, the proportion of the population in jail at any
one time) also rose markedly over roughly the same time: increasing from 96
per 100,000 U.S. residents in 1983 to a peak of 259 per 100,000 in 2007.15 The rate
has since declined to 231 per 100,000 in 2013.16 This growth in the confinement
rate continued for years after crime rates started to decline (see Figure 2.) Both
8
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
161
Figure 2: Crime and jail rates per 100,000
Key: Jail Property Crime Violent Crime
300
250
4000
200
3000
150
2000
100
1000
50
0
0
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
5000
JAIL
CRIME
6000
Source: For jail rates, see Craig A. Perkins, James J. Stephan, and Allen J. Beck, Jails and Jail Inmates: 1993-94.
(Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1995); Allen
J. Beck and Jennifer C. Karberg, Prison and Jail Inmates at Midyear 2000. (Washington, DC: U.S. Department
of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2001); Todd D. Minton and Daniela Golinelli,
Jail Inmates at Midyear 2013 - Statistical Tables. (Washington, DC: U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, 2014); and for crime rates, see Uniform Crime Reporting Statistics - UCR Data
Online at http://www.ucrdatatool.gov/.
1.4M
1.2M
800
700
600
Arrest rate
(per 100,000)
500
1M
400
800K
300
600K
R AT E
200
400K
100
200K
0
0
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2007
2006
2007
2008
2009
2010
2011
2012
jail use tracks the rise of drug
crime enforcement. From 1981
until 2006, when they peaked,
total drug arrests more than
tripled, from 560,000 to 1.9 million, and the drug arrest rate (per
100,000) grew 160 percent. The
share of people in jail accused
or convicted of a drug crime
increased sharply in the 1980s,
ARRESTS
violent and property crime rates peaked in 1991 and have been declining steadily ever since—nationally, violent crime is down 49 percent from its highest
point more than 20 years ago and property crime is down 44 percent.17
While the country has continued to grow safer—at least by the most common measures of public safety—an ever-larger proportion of the population is
being sent to jail, though reFigure 3: Drug arrests, 1981–2012
search demonstrates that there is
little causal connection between
2M
improved public safety and an
1.8M
increased use of incarceration.18
Total arrests
1.6M
Notably, much of this growth in
Source: Howard N. Snyder, and Joseph Mulako-Wangota, Bureau of Justice Statistics.
With underlying data from the FBI’s Uniform Crime Reporting (UCR) Program, the information
presented in this figure was generated using the Arrest Data Analysis Tool at www.bjs.gov.
162
VERA INSTITUTE OF JUSTICE
9
Figure 4: Drug defendants and inmates as share of
jail populations
9%
25%
1983
2002
Source: For the 1983 drug share, see Allen J. Beck, Profile of Jail Inmates, 1989 (Washington,
DC: US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1991);
and for 2002, see Doris J. James, Profile of Jail Inmates, 2002 (Washington, DC: US Department
of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2004).
from nine percent in 1983 to 23 percent in 1989, and has hovered there ever
since (see Figures 3 and 4).19
Not only are more people ending up in jail, those who get there are spending
more time behind bars. The length of stay increased from an average of 14 days
in 1983 to 23 days in 2013.20 Although the national data on length of stay do not
distinguish between those held pretrial and those sentenced to a term in jail,
this increase is nevertheless a significant and worrisome trend. Moreover, since
the proportion of jail inmates that are being held pretrial has grown substantially in the last thirty years—from about 40 to 62 percent—it is highly likely
that the increase in the average length of stay is largely driven by longer stays
in jails by people who are unconvicted of any crime.
Length of stay in jails
Average length of stay in days has been increasing over the past 30 years.
10
1983
2013
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INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
163
ABOUT THE DATA
Wherever possible, the authors of this report support their
analysis of the current state of jails in the United States with
reference to the latest available national data—most of which are collected by the U.S. Department of Justice’s Bureau of Justice Statistics (BJS).
The BJS releases jail reports with statistical tables annually as part of its
Prison and Jail Inmates at Midyear series. These reports include data on
jail capacities, population counts, and demographic breakdowns. They do
not, however, include more detailed data on such topics as the severity of
charges or the prevalence of mental health issues. The last time the BJS
released data on these topics was in 2002 in its Survey of Inmates in Local
Jails, a detailed survey of a sample of nationally representative jail inmates.
These surveys were conducted in five-to-seven year intervals from 1972
through 2002, but have not been conducted since. This report includes
figures from the latest survey where the survey’s findings are still relevant
and more recent figures are not available. The authors also draw attention
to data from local jurisdictions when doing so can illuminate an issue or a
notable trend.
Portrait of the jailed
While jails still serve their historical purpose of detaining those awaiting trial
or sentencing who are either a danger to public safety or a flight risk, they have
come to hold many who are neither. Underlying the behavior that lands someone in jail, there is often a history of substance abuse, mental
Figure 5: Racial disparities
illness, poverty, failure in school, and victimization. Sixty-eight
percent of people in jail have a history of abusing drugs, alcohol, or both.21 Forty-seven percent of jail inmates have not
graduated from high school or passed the General Educational
Development (GED) test.22
47.2%
35.8%
62.6%
13.2%
Nationally, African Americans are jailed at almost four times
the rate of white Americans.23 Despite making up only 13 percent of the U.S. population, African Americans account for 36
percent of the jail population (see Figure 5).24 Locally, disparities
can be even starker: in New York City, for example, blacks are
jailed at nearly 12 times the rate of whites and Latinos more
than five times the rate of whites.25
Among the many disadvantaged people in jails, the largest
WHITE
BLACK
WHITE BLACK
group by far is people with a mental illness. Jails have been described as the “treatment of last resort” for those who are menSource: Todd D. Minton and Daniela Golinelli, Jail Inmates at
Midyear 2013 - Statistical Tables (Washington, DC: US Department
tally ill and as “de facto mental hospitals” because they fill the
of Justice, Office of Justice Programs, Bureau of Justice Statistics,
vacuum created by the shuttering of state psychiatric hospitals
2014) and United States Census Bureau of the Census “QuickFacts.”
164
VERA INSTITUTE OF JUSTICE
11
Mental illness and substance
use disorders in jails
14.5%
31%
3.2%
4.9%
Serious mental illnesses
72% of
people in
jail with a serious
mental illness also
have a substance
use disorder.
68%
all jail
inmates
9%
general
population
Diagnosable substance use disorders
12
and other efforts to deinstitutionalize people with serious mental
illness during the 1970s, which occurred without creating adequate
resources to care for those displaced in the community.26
Serious mental illness, which includes bipolar disorder, schizophrenia, and major depression, affects an estimated 14.5 percent of men
and 31 percent of women in jails—rates that are four to six times higher than in the general population.27 According to the BJS, 60 percent of
jail inmates reported having had symptoms of a mental health disorder in the prior twelve months.28 People with serious mental illnesses
are often poor, homeless, and likely to have co-occurring substance use
disorders and, thus when untreated, are far more prone to the kinds
of public order offenses and minor crimes that have been the focus of
law enforcement in recent years and have helped swell jail populations. 29
The prevalence of people with mental illness in jail is at odds with
the design, operation, and resources in most jails. Characterized by
constant noise, bright lights, an ever-changing population, and an
atmosphere of threat and violence, most jails are unlikely to offer
any respite for people with mental illness. Coupled with the near-absence of mental health treatment, time in jail is likely to mean
further deterioration in their illness. According to the latest available
data, 83 percent of jail inmates with mental illness did not receive
mental health care after admission.30 The lack of treatment in a cha-
otic environment contributes to a worsening state of illness and is a
major reason why those with mental illness in jail are more likely to
be placed in solitary confinement, either as punishment for breaking
rules or for their own protection since they are also more likely to be
victimized.31
While most people with serious mental illness in jails, both men and
women, enter jail charged with minor, nonviolent crimes, they end up
staying in jail for longer periods of time. In Los Angeles, for example,
Vera found that users of the Department of Mental Health’s services
on average spent more than twice as much time in custody than did
the general custodial population—43 days and 18 days respectively.32
Costs and consequences
The growth of jails has been costly in many ways, contributing little,
if at all, to the enhancement of public safety. From 1982 to 2011, local
expenditures on corrections—largely building and running jails—increased nearly 235 percent.33 The increasing direct costs of operating
jails, however, are matched by the indirect costs and consequences of
jailing people who do not need to be there or holding them for longer than necessary. These consequences—in lost wages, worsening
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
165
BEYOND MENTAL ILLNESS
For people with mental illness in jail, their illness is often
at the center of several interrelated problems. A BJS study
published in 2006—the most recent national study of its kind—showed
that people with mental illness in jail are more likely than others to experience homelessness, unemployment, and substance abuse.a
>>Seventeen percent of people with mental illness in jail were homeless
in the year before their arrest, compared to nine percent of the rest of
the jail population.
>>Nearly a third of the people in jail with mental illness were unemployed in the month before arrest, compared to less than a quarter of
the rest of the jail population.
>>Thirty-four percent of people with mental illness in jail were using
drugs at the time of their arrest compared to 20 percent of the rest of
the jail population. Fifteen percent of people with mental illness were
using both drugs and alcohol at the time of their arrest compared to
seven percent of the rest of the jail population.
a
Doris J. James and Lauren Glaze, Mental Health Problems of Prison and Jail Inmates (Washington,
DC: US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2006), p.4.
physical and mental health, possible loss of custody of children, a job, or a place
to live—harm those incarcerated and, by extension, their families and communities. Ultimately, these consequences are corrosive and costly for everyone
because no matter how disadvantaged people are when they enter jail, they are
likely to emerge with their lives further destabilized and, therefore, less able to
be healthy, contributing members of society.34
Of the more than $60 billion spent annually on correctional institutions, $22.2
billion, or about one third, is spent by local jurisdictions.35 Even this figure fails
to capture the true costs of jails to local jurisdictions, as money spent on jails—
for pension plans for staff for example, or healthcare for inmates—often comes
out of the budget of non-correctional agencies. Cities and counties have to cover
most costs themselves, drawing on the same pool of tax revenue that supports
schools, transportation, and an array of other public services.36
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VERA INSTITUTE OF JUSTICE
13
Figure 6: Pretrial detention and sentencing
Compared to low-risk defendants released prior to trial,
those detained before trial were…
…more likely to
receive a sentence
of imprisonment
…more likely to
be given a longer
prison sentence
4x
3x
more likely
longer
Source: Christopher Lowenkamp, Marie VanNostrand, and Alexander
M. Holsinger, Investigating the Impact of Pretrial Detention on Sentencing
Outcomes (New York: The Laura and John Arnold Foundation, 2013).
Figure 7: Pretrial detention and reoffending
Compared to low-risk defendants held for no more than
24 hours, those held for 8-14 days were...
…more likely
to be rearrested
before trial
…more likely to
recidivate after
sentence completion
56%
51%
Source: Christopher Lowenkamp, Marie VanNostrand, and Alexander M.
Holsinger, The Hidden Costs of Pretrial Detentions.
(New York: The Laura and John Arnold Foundation, 2013).
14
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
WORSE CASE OUTCOMES AND
DECREASED PUBLIC SAFETY
Recent research supported by the Laura and John
Arnold Foundation on people held in jail pending the
resolution of the charge(s) against them (commonly
referred to as “pretrial detention”)—with data drawn
from counties in two states in different parts of the
country—has reignited interest in pretrial policies
and practices. Researchers found that even a relatively
short period in jail pretrial—as few as two days—correlates with negative outcomes for defendants and for
public safety when compared to those defendants released within 24 hours. While results varied by length
of detention and risk level, in virtually every category, those detained were more likely to be rearrested
before trial, to receive a sentence of imprisonment,
to be given a longer term of imprisonment, and to recidivate after sentence completion (see Figures 6 and
7). The probabilities were especially high for low-risk
individuals and for those held for their entire pretrial
period and remained true even when researchers controlled for relevant factors including risk level, supervision status, offense type, offense level, time at risk in
the community, demographics, and other factors.37
Earlier research had noted that those held pretrial may be more likely to receive custodial as well as
longer sentences because defendants already in jail
receive and accept less favorable plea agreements and
do not have the leverage to press for better ones.38 In
the Arnold Foundation study, however, the harsher
sentences held even for those detained for only a few
days (and who, therefore, did have the freedom to hold
out for a more favorable offer from prosecutors). For
the much smaller number of defendants who go to
trial, research has found that jurors tend to view defendants brought to court in jail uniforms and shackles as guilty regardless of the merits of the case.39 For
policymakers interested in reducing incarceration at
both the state and local levels, this research has major
implications: reducing detention, especially for lowand medium-risk defendants, can help reduce incarceration by lowering recidivism and prison terms.
167
DIFFERENTIAL RACIAL IMPACT
Community-level consequences of incarceration are most evident in African
American and Latino communities whose members are disproportionately represented in jails across the country. While blacks and Latinos combined make
up 30 percent of the general population, they are 51 percent of the jail population.40 This disparity is caused by myriad and interconnected factors, including
policing practices that concentrate law enforcement activities in low-income,
minority communities, combined with the socio-economic disadvantages
experienced by residents in those neighborhoods.41 Black males, in particular,
are arrested at a younger age and at higher rates than their white counterparts,
often giving them a longer “rap” sheet regardless of the charges or the eventual
dispositions of the cases.42 Schools in minority neighborhoods are more likely to
have law enforcement officers on site and to embrace “zero tolerance” policies.43
“Stop, question, and frisk” policies have been shown to target young men of
color, especially black men.44 Black men are also more likely to be arrested for
drug crimes despite similar rates of use when compared to whites.45 With arrest
records on file at earlier ages, subsequent contacts with police result in more
severe case outcomes as these young men come of age.46
Black men are also disproportionately held pretrial as a result of an inability
to post monetary bail. Although their bail amounts are similar to bail amounts
set for whites, black men appear to be caught in a cycle of disadvantage.
Because they are incarcerated at higher rates they are more likely to be unemployed and/or in debt, resulting in more trouble posting bail.47
Moreover, these disparities persist at sentencing. Black men in the state
and federal justice systems tend to receive longer sentences than their white
counterparts convicted of similar crimes—differences that become more pronounced as the severity of sentences increase.48
ACCUMULATION OF CRIMINAL JUSTICE DEBT
Many jails, courts, and other criminal justice agencies charge for the services
they provide, including jails that charge for clothing and laundry, room and
board, medical care, rehabilitative programming, and even core functions such
as booking.49 In addition, most jails have contracts with private telephone and
video conferencing companies that charge higher rates to inmates than they do
in the community.50 While each individual fee may be small, they add up. Some
people have been required to pay thousands of dollars in fines and fees.51 Even
when jurisdictions offer payment plans, they often include surcharges and
other fees.52 Add to this child support payments, credit card debt, rent, and other
living expenses that can accumulate during incarceration—often with late
charges or compounded interested tacked on—the financial picture for many
leaving jail is very bleak.
Moreover, fees may continue to accrue after release. If convicted, an individual may be ordered to pay restitution; if sentenced to probation or court-ordered
programming or treatment, a person may also have to pay supervision fees plus
168
VERA INSTITUTE OF JUSTICE
15
the programming costs.53 For many, these payments are impossible to make:
people who spend more than a few days in jail, and who often work at lowwage jobs to begin with, risk losing their jobs and may find getting new ones
extremely challenging, especially if they have supervision and programming
obligations that interfere with the work day.54 This, in turn, increases their vulnerability to being incarcerated again. In Florida, for example, agencies expect
to collect only nine percent of fines and fees assessed.55
Although debtors prisons were formerly abolished in the United States
almost two hundred years ago, many people today are returned to jail for
non-payment of fines and fees.56 Although the use of incarceration for failure
to pay a debt is unconstitutional absent evidence that a person willfully refuses
despite an ability to pay (and that alternative punitive measures are unavailable), there are no specific guidelines for how judges should evaluate a defendant’s ability to pay, resulting in both inconsistency in the application of this
rule, and a risk that people are returned to custody simply for being poor. 57
According to one study that examined prison and jail incarceration together,
individuals who do manage to find work after release earn less on average than
their counterparts who have never been incarcerated.58 Among formerly incarcerated men in that study—two-thirds of whom were employed before being
incarcerated—hourly wages decreased by 11 percent, annual employment by
nine weeks, and annual earnings by 40 percent as a result of time spent in jail
or prison (See Figure 8.)
Figure 8: Incarceration reduces earnings power
Estimated effect of incarceration on male wages, weeks worked annually,
and annual earnings, predicted at age 45
48 weeks
$16.33/hr
39 weeks
$14.57/hr
$39,100
$23,500
If Not
Incarcerated
PostIncarceration
WAGES
If Not
Incarcerated
PostIncarceration
WEEKS WORKED
If Not
Incarcerated
PostIncarceration
ANNUAL EARNINGS
Source: The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility (Washington, DC:
The Pew Charitable Trusts, 2010).
16
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
169
Public benefit programs may not be able to help. For those who were receiving or were eligible for benefits like food stamps or Medicaid, a jail stay can
cause a suspension or termination of that support.59 Suspended benefits can be
more easily restarted upon release, whereas terminated benefits can take years
to reinstate.60 Even a short gap in benefits, however, can have serious consequences for the large number of people leaving jail who have debt, little or no
income from work, and may also have a chronic illness—an end result that is
particularly disproportionate when people are accused of non-serious offenses,
such as a traffic or ordinance violation.
Housing can also be a challenge for people jailed for even a short period of
time. Those in debt may find it impossible to afford market-rate housing, and,
much like employers, many landlords are unwilling to rent to someone with
a criminal record (of arrest or conviction or both). Staying with family members can also be problematic, especially if they live in public housing as many
local public housing authorities ban, at least temporarily, those with a criminal
record.61 A survey in Baltimore found that people who have spent time in jail or
prison are much less likely to hold a lease or mortgage after release than they
were prior to being confined.62 Another study showed that people are far more
likely to become homeless for some period following release from jail, even
when the charges are dismissed.63
DECLINING HEALTH
Given high levels of need and the constant churning of their population, most
jails struggle to deliver health care that meets minimally accepted standards of
care in the community. This is particularly critical as people in jail report high
rates of medical problems.64 Moreover, conditions in jail—especially crowding
and poor sanitation—can be especially harmful to the many in custody with
chronic health problems, particularly mental illness, and facilitate the spread
of contagious diseases.65 The greater prevalence of contagious diseases in jails
affects both the families and communities to which those incarcerated there return.66 Since most people do not stay in jail for very long, it is difficult to provide
them adequate care while incarcerated or to connect them to treatment in the
community upon release.67 Lack of continuity of care is likely a large part of the
reason why people with mental illness tend to cycle in and out of jail.
HARM TO FAMILIES AND COMMUNITIES
Families and communities also suffer from the misuse of jails. For families, the
consequences are manifold—financial, structural, and emotional. Communities
where rates of incarceration are high tend to experience declines in social and
economic well-being as well as in public safety.68
Families face considerable financial consequences when a member goes to
jail. They may have to pool limited family resources to post bail or to pay for jail
telephone calls and other services, and they may experience a loss of income or
housing when the incarcerated person was the primary earner or leaseholder.
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VERA INSTITUTE OF JUSTICE
17
To some degree, every family— regardless of socio-economic circumstances—
is temporarily broken apart when a member is jailed, with the consequences
most pronounced when the jailed person has children. In particular, when
mothers go to jail, their children are more likely to experience a change in caregiver or to enter foster care.69 A study of mothers in Illinois’ Cook County Jail
found that those whose children entered foster care upon their incarceration
were half as likely to reunite with their children upon release when compared
to non-incarcerated mothers with children in foster care.70
Jails can make conditions in already struggling communities worse. Jail admissions tend to be concentrated in neighborhoods with elevated rates of poverty, crime, and racial segregation, and low rates of educational attainment and
employment—and which are also often heavily policed.71 In turn, high rates of
incarceration further destabilize these communities, often leading to increased
rates of crime and even higher levels of police enforcement.72
Six key decision points that
influence the use and size of jails
How and why so
many people cycle
through jails is the
result of decisions
dispersed among
largely autonomous
system actors.
18
Although there is new appetite for reducing America’s reliance on incarceration, scaling back jail populations will be a complicated task. How and why
so many people cycle through jails is the result of decisions dispersed among
largely autonomous system actors—which together make up one system of
incarceration. These include the police who choose to arrest, release, or book
people into jail; prosecutors who determine whether to charge or divert arrested persons; pretrial services program providers who make custody and release
recommendations; judges, magistrates, or bail commissioners who decide
whom to detain or release, and under what conditions; other court actors, from
attorneys and judges to administrators, whose action or inaction can accelerate
or delay pending cases; and community corrections agencies who choose how
and when to respond to persons who violate their conditions of supervision
in the community. Release and detention decisions may also depend on the
existence of critical community services that can provide the supports needed
to keep people charged with crimes out of custody.
Given that all of these actors may be driven by contradictory goals or incentives and may operate with varying degrees of knowledge of, or enthusiasm for,
alternatives to jail incarceration, it can be very difficult to align or coordinate
their efforts to ensure that jails are used only when absolutely necessary to
serve the public good. But it’s not impossible.
New York City provides a good example of how changes in local system
practices across agencies can work in concert to reduce the number of people
in custody. New York substantially decreased its jail and prison (as well as
community corrections) populations between 2000 and 2009, primarily as a
result of changes in policy and practice around arrest and the use of alterna-
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
171
tives to incarceration and other diversion programs, requiring in tandem policy
changes across the police department, the courts, and district attorneys’ offices.
Throughout that period, the crime rate in the city continued to fall.73
Because jail admissions and length of stay—the two main determinants of
jail populations—are a function of decisions made by multiple criminal justice
system actors at the local level, opportunities can and do arise along the trajectory of a typical individual case to prevent a person from going to jail unnecessarily or to release him or her as soon as safely possible. However, in practice,
seizing the opportunity at any given point can be challenging and will require
some coordination among system actors since their actions in large part depend on information provided or action taken by others in the system.
DIAGNOSING LOS ANGELES COUNTY’S
OVERCROWDED JAILS
“Bigger and more expensive jails aren’t the only solution,”
noted a 2012 Los Angeles Times editorial titled “LA County
Jails: What’s the Fix?”a The editorial drew on Vera’s analysis
of Los Angeles County jails and the systems that fill them.
Los Angeles County is the largest county in the United States, and it also
operates the largest jail system. Eight jails are fed by 88 municipalities with
47 law enforcement agencies, and more than 30 courthouses with more
than 400 judges. In 2009, the Los Angeles County Chief Executive Office
and its Criminal Justice Coordination Committee contracted with Vera to
study persistent overcrowding in the jails and make recommendations for
safely and efficiently alleviating it.
Understanding this complex operation and the problem of overcrowding
began with an analysis of administrative data from nine agencies involving
the 800,000 cases booked into the county jail system in 2007 and 2008.
Vera reviewed policies, procedures, and practices from the agencies that
influence the size of the jail population (including police departments, the
courts, the prosecutor and public defender offices, the probation department, the state corrections and parole agencies, and the L.A. County Sheriff’s Department), convened focus groups and meetings and conducted
more than 100 confidential interviews.
Over the course of two years, researchers matched information from the
nine major databases to track the progress of more than 54,000 cases from
arrest to disposition within that time frame. The study analyzed the flow of
people into and out of jail and through the court process. Through analysis
of individual cases and large administrative data sets, the researchers created profiles of typical offenders and identified trends in jail usage. Their
analysis also revealed key decision points that influence the size of the jail
population, as well as bottlenecks that cause delays that keep people in jail
longer than necessary.
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VERA INSTITUTE OF JUSTICE
19
On the basis of this analysis, Vera issued a final report to the county that
reviewed the issues and challenges identified and made 39 recommendations—that ranged from pretrial screening and bail schedules to the integration of key databases—to reduce jail crowding and improve the effectiveness of the justice system.b In particular, the report detailed the many
obstacles to effective responses to people with mental illness caught up in
the criminal justice system and the lack of diversion options.
a
Editorial Board, “L.A. County’s broken jails: What’s the fix?” Los Angeles Times,
January 30, 2012.
b
Vera Institute of Justice, Los Angeles County Jail Overcrowding Reduction Project: Final Report
(New York, NY: Vera Institute of Justice, 2011).
Six key decision points—arrest, charge, pretrial release/bail, case processing,
disposition and sentencing, and supervision and reentry—are explored in the
sections that follow through an analysis of who is involved, what typically happens, and what could happen otherwise to reduce jail incarceration through the
implementation of strategic reforms.
ARREST
Even when a police
officer feels that
circumstances
justify an arrest,
that decision does
not have to open the
door to jail.
20
Arrest is a person’s entry point into the criminal justice system. An incident occurs and law enforcement—the police or sheriff’s department—is called to the
scene, or there is an interaction with or observation by law enforcement in the
course of regular duties, such as a traffic stop or a street encounter.
What happens at arrest is an important determinant of the flow and number of accused persons who enter jail. The police have several choices when
responding to reported or observed criminal activity. They decide whether to
decline intervention; whether an arrest, summons, or verbal warning is warranted; or whether to refer an individual to services outside the criminal justice
system, such as community mental health or substance abuse programs. Even
when a police officer feels that circumstances justify an arrest, that decision
does not have to open the door to jail. Under most state laws, the officer may
take the suspect to the station house to be photographed and fingerprinted and
where a more detailed background check can be completed.74 Where available,
computers in cars or hand-held tablets allow police officers to conduct some of
these procedures in the field. Law enforcement can then release the defendant
using a “notice-to-appear” or “desk appearance” ticket to secure a promise from
the person to appear in court when required. 75
How the police make an arrest decision is influenced by a number of intersecting factors and dynamics on a precinct, departmental, local, state, and
federal level. While state and federal laws define what constitutes a criminal
offense, local political pressures, policy decisions, and departmental priorities
will play a larger role in how and when police resources are used and where
they are deployed. In some jurisdictions, pressure from public officials—often
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
173
responding to the concerns of residents and businesses to combat low-level,
quality-of-life offenses (see “Broken Windows Policing” on page 21.) —has led
to zero-tolerance policing policies that may also require arresting anyone who
breaks the law. This may increase the number of misdemeanor or non-criminal
arrests (ordinance violations) for drug possession, vagrancy, loitering, and other
public order offenses. Meanwhile, political or community pressures may determine which neighborhoods to target, how and when line officers are deployed,
and which arrest protocols to follow, including whether pre-arrest (e.g., cite and
release) or post-arrest (e.g., the provision of an appearance ticket at the police
precinct) diversion options are available for certain types of offenses.
Other important dynamics on the department and community level may also
be at play. Some police departments institute informal or formal arrest quotas
or targets and link performance evaluations and career advancement to compliance with them.76 These policies have been the subject of extensive litigation, so
it is difficult to estimate how prevalent they remain. In some cash-strapped municipalities, police officers understand that they need to make more arrests in
order to raise revenue through fines, fees, and asset forfeiture—as has been the
focus of some press coverage in the wake of recent events in Ferguson, Missouri.77 On the other hand, police departments in resource-poor neighborhoods may
BROKEN WINDOWS POLICING
Published in the Atlantic Monthly in 1982, George Kelling
and James Q. Wilson’s essay titled “Broken Windows”
has had a large and lasting influence on police strategy
around the nation.a In it the authors argued that quality-of-life offenses, such as graffiti or public intoxication, can give residents
the impression that neighborhood crime is on the rise, causing residents to
become fearful, avoid public areas, and lose trust in local law enforcement.
The authors also suggested that criminals may become emboldened by this
decay, which they may perceive as a marker of an apathetic community and
an ineffective police force, leading to an increase in serious crime. Kelling
and Wilson posited “broken windows” as an evocative metaphor of the disarray that may ensue: “If a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”
The broken windows theory was zealously adopted by police forces around
the country in the 1990s and early 2000s. Quality-of-life and low-level offenses or infractions were targeted through zero-tolerance and stop-andfrisk policies as a way of preventing more serious crime from flourishing.b
In 1994, New York City Police Commissioner William Bratton implemented
broken windows policing which resulted in a steep increase in misdemeanor marijuana arrests—from 1,851 arrests in 1994 to more than 50,000 in
2000, a 2,760% increase.c
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VERA INSTITUTE OF JUSTICE
21
Despite the ubiquity of this approach, there is little evidence that broken windows policing is effective at reducing overall crime.d An exhaustive review of
research by the National Research Council concluded that there is not strong
evidence that aggressively responding to minor offenses, particularly with arrest, effectively reduces or prevents more serious crime.e Furthermore, critics
argue that these types of policies often target low-income, minority communities and are, therefore, applied inequitably.
It is worth noting that Kelling and Wilson did not argue explicitly for more
arrests of disorderly community members. Instead, they suggested that police
officers should help uphold social norms in the communities they serve by
reducing public nuisances, such as redirecting an intoxicated loiterer to a less
public area of town. As originally formulated, their theory supports increased
interactions with residents, but not necessarily increased arrests or citations.
In an interview in 2015, Kelling explained, “Broken windows is a tactic, an essential part of community policing, that works with the community to identify
problems and set priorities...We don’t want police to just be making arrests.”f
George L. Kelling and James Q. Wilson, “Broken Windows,” Atlantic Monthly (March 1, 1982).
Bernard E. Harcourt and Jens Ludwig, “Broken Windows: New Evidence from New York City and a
Five-City Social Experiment,” University of Chicago Law Review 73 (2006): 271-319.
c
Bernard E. Harcourt and Jens Ludwig, “Reefer Madness: Broken Windows Policing and Misdemeanor Marijuana Arrests in New York City, 1989-2000,” University of Chicago Public Law & Legal Theory
Working Paper 142 (2006) and Andrew Golub, Bruce D. Johnson, and Eloise Dunlap, “The Race/
Ethnicity Disparity in Misdemeanor Marijuana Arrests in New York City,” Criminology & Public Policy 6,
no. 1 (2007): 131-164.
d
See Bernard E. Harcourt and Jens Ledwig, “Broken Windows,” edited by Wesley Skogan and
Kathleen Frdyl, in Fairness and Effectiveness in Policing: The Evidence (Washington, DC: National
Academy of Sciences, 2004); Jeffrey Fagan and Garth Davies, “Street Stops and Broken Windows: Terry, Race, and Disorder in New York City,” Fordham Urban Law Journal 28, no. 2 (2000):
457-504; and Center for Evidence-Based Crime Policy, George Mason University “Broken Windows Policing,” http://cebcp.org/evidence-based-policing/what-works-in-policing/research-evidence-review/broken-windows-policing/
e
See for example, Skogan and Frdyl, 2004.
f
Patt Morison, “’Broken Windows’ Policing Isn’t Broken, Says Criminologist George L. Kelling,” Los
Angeles Times, January 6, 2015.
a
b
have no other option but to arrest and jail when responding to certain types of
people—those who are intoxicated, mentally ill, or drug addicted—because of
a lack of partnerships with community-based treatment and triage centers, or
because such community resources simply do not exist.
The likelihood that arrest will lead to a jail booking has increased steadily
over the years. Thirty years ago, when crime rates overall were higher, there
were 51 admissions into jail for every 100 arrests.78 By 2012, the most recent year
for which national data are available, that number had climbed to 95 admissions per 100 arrests.79 While not all admissions come from arrests—warrants
for people suspected of parole and probation violations, for example, provide
another route to jail—the growth in admissions even as arrest rates have
declined reflects changing policies rather than growth in more serious crimes
by high-risk individuals. According to an analysis of 17 state courts, nearly 78
22
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
175
Thirty-year trends: Arrest and booking rates per 100,000
Even as arrest rates have decreased sharply—tracking crime rates—bookings into jail have continued to grow.
In 1983 there were only half as many bookings as arrests while in 2012 bookings nearly matched arrests,
suggesting a greater propensity to hold many who in earlier times would have been released.
6000
6000
Arrests
3000
ail
3000
s
ing
k
Boo
1000
J
into
1000
1983
2012
1983
2012
percent of all cases in which a district attorney files charges involve people accused of misdemeanor crimes; and in some jurisdictions such as New York City,
many of these are for minor drug offenses.80 Drug crimes are the only offenses
for which the arrest rate continued to increase throughout the 1990s and into
the new century.81
POLICING DIFFERENTLY:
ALTERNATIVES TO ARREST
AND DETENTION
Citation and release. The New Orleans
Police Department is just one among many
law enforcement agencies that is relying
more on citation and release. In the summer of 2008, the city council enacted
an ordinance mandating the use of a summons rather than arrest when police
encounter people who commit a municipal offense other than domestic violence.
From 2009 through 2011, the use of summonses in cases other than domestic violence and public intoxication increased from 41 percent to more than 70 percent.
Arrests correspondingly dropped from 59 percent to 30 percent.a This change in
approach not only conserves costly jail beds, it is also an enormous time-saver for
officers, allowing them to focus on serious public safety concerns.
176
VERA INSTITUTE OF JUSTICE
23
Pre-booking diversion programs. The Law Enforcement Assisted Diversion (LEAD) Program in King County, Washington, identifies people
arrested for lower-level drug and prostitution offenses and diverts them
away from the criminal justice system and into community-based services.b
When police-initiated diversion programs like this are effective, they yield
benefits all around—for individuals, their families, and communities—and
reserve expensive criminal justice system resources for more serious cases.
Programs for offenders with behavioral health issues. Every police officer
in Portland, Oregon, receives training in how to respond to a suspect who
appears to suffer from mental illness or is under the influence of drugs or alcohol.c Beyond basic training, the department established a special corps of
officers who volunteer and receive more intensive training to focus on calls
for service involving unstable people. The department is also involved in
prevention, running a Mobile Crisis Unit that pairs an officer with a licensed
mental health professional who can connect people with appropriate mental health services in the community. And for people whose mental illness
or substance use disorder is driving their repeated encounters with law enforcement—typically as suspects in drug or property crimes—the department participates in a Service Coordination Team that offers treatment in
lieu of detention. Between 2008 and 2010, the team saved the county nearly
$16 million in jail costs alone. The work in Portland reflects an emerging trend
nationally in which police departments are forging innovative and powerful
partnerships with local mental health service providers.
a
Criminal Justice Leadership Alliance, “Use of Summonses versus Custodial Arrest for Municipal
Offenses,” December 8, 2010, and Criminal Justice Leadership Alliance, “Use of Summonses
versus Custodial Arrest for Municipal Offenses,” July 14, 2011, unpublished reports provided to
Vera in its role as a member of the alliance.
b
“Law Enforcement Assisted Diversion,” http://leadkingcounty.org/.
c City of Portland, Police Bureau, “Behavioral Health Unit,” http://cebcp.org/evidence-based-policing/what-works-in-policing/research-evidence-review/broken-windows-policing/
d
Cameron Smith, Report of the Reset Subcommittee on Public Safety (Boston: Crime & Justice
Institute, 2010), 16, http://www.oregon.gov/CJC/docs/pubsafe_subcomreport_final.pdf.
The policies and pressures that have led police officers to arrest and detain a larger proportion of criminal suspects are not unchangeable, though they may receive
considerable public support, as zero-tolerance policies have until recently. Some
law enforcement agencies are focusing on community crime prevention strategies
that do not always involve detaining people. They are making more use of citation
and release, partnering with service agencies to divert certain groups of defendants
away from the justice system altogether, and increasing their capacity to respond
constructively to people with a mental health or substance abuse problem.
24
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
177
CHARGE
After a police officer has arrested and detained someone suspected of breaking
the law, the person has to be formally charged in order for the case to proceed—
and that decision has to be made quickly following a custodial arrest.82 It is
up to the prosecutor to accept or decline the case, and if he or she chooses the
former, to determine what charge(s) to file, which usually occurs during arraignment. The prosecutor’s charging decisions are important to the outcome of
the criminal case and the accused person’s future, but they also have significant
influence on jail populations.
Prosecutors screen new arrests, looking at whether the elements of the alleged
crime are present in the arrest complaint and whether the quality of evidence
seems sufficient to support charges against the person. Prosecutors may reduce,
increase, or dismiss charges, depending on the information provided to them by
the police, or request additional information before making a decision.
Once a prosecutor determines that a case is legally sufficient to move forward, he or she brings charges, unless there is clear exculpatory evidence or if
institutional policy in the public interest determines otherwise.83 Because the
initial charge is used as a baseline from which the prosecutor will pivot later in
the case through plea negotiations, few legally sufficient cases are dismissed or
diverted at this early point in the process, even though the prosecutor has wide
discretion to do both.
When a person is formally charged, the type and severity of the initial charge(s),
as well as any charge enhancements invoked, influence bail amounts and eligibility for non-financial pretrial release as well as diversion programs or community-based sanctions designed to address underlying problems. In turn, these
charge decisions influence whether the person will be detained pretrial (and for
how long) and, if convicted, be given a custodial sentence.
Some district attorney offices are re-evaluating their handling of certain
cases, declining to prosecute some types or relying more on alternatives to
prosecution, which do not require filing formal charges, such as problem-solving courts and other pre-charge diversion programs. This shift in course, while
hardly widespread across the nation’s 3,000 counties, does reflect a belief
among some prosecutors that jails are not always the best option for ensuring public safety, and a growing desire among them to reduce the number of
people exposed to the collateral consequences that accrue to people who are
charged with a criminal offense and spend time in jail.84
While it is easy enough to do so in individual cases, systematic efforts to
move away from a reliance on prosecution and jail detention will require district attorneys to participate in an analysis of their current jail populations and
the longer-term outcomes for specific categories of people, charges, and dispositions. With a view to producing improved public safety, district attorneys
District attorneys
can serve as leaders
in the creation
of communitybased solutions to
crime problems
and in the early
identification of
defendants suitable
for diversion.
178
VERA INSTITUTE OF JUSTICE
25
IN LIEU OF PROSECUTION
Decline to prosecute. In July 2014,
Kings County (Brooklyn, NY) District
Attorney Kenneth P. Thompson decided to stop prosecuting most people arrested for low-level marijuana
offenses.a Mr. Thompson said in a
memo that the new policy was established to keep nonviolent individuals, especially young people of color,
out of the criminal justice system because open cases as well as convictions can become barriers to employment, housing, and higher education. The policy was established after years of steady increases in misdemeanor marijuana arrests, including more than 8,000 such arrests in the
year ending June 30, 2014.
Community prosecution. In communities from Denver, Colorado to Milwaukee, Wisconsin, assistant district attorneys are assigned to work in
specific neighborhoods, often co-locating in police stations, to develop
partnerships with neighborhood organizations and learn the problems
(whether a “drug house” or a poorly lit bus stop) that make places less
safe.b They work with community members to develop prevention strategies to reduce both crime and arrests and with victims to better understand
their fears and losses and to explain court processes. Together with service
providers, prosecutors also identify those whose behavior is a nuisance or
worse in the neighborhood, and help keep them out of the criminal justice
system if that can be done safely.
Pre-charge diversion. The Hennepin County (Minnesota) District Attorney’s Office partners with a local nonprofit, Operation de Novo, Inc., to
provide an alternative to prosecution for people with no felony history and
a limited misdemeanor history who have been arrested for a felony-level property crime where restitution is no more than $2500—people who
otherwise are likely to be detained pretrial and to receive a jail sentence.c
Operation de Novo case managers work with eligible arrestees to set requirements and goals for the year, which include community service and
victim restitution. Those who successfully complete the program have a
way to “pay their debt” to society and their victim without the added burden of a criminal conviction. In one recent year, the program handled 828
felony cases, collected and returned $440,200 in restitution to victims, and
oversaw 10,720 hours of client community service.d
Community courts. Many cities run courts located in local communities
that take a problem-solving approach to crime. Focusing primarily on misdemeanor, quality-of-life offenses—such as simple drug possession, theft,
26
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
179
prostitution, drinking in public, and trespassing—these courts work with
community-based organizations to create opportunities for participants
to do required community service and to offer support designed to reduce their re-offending.e While some community courts intervene after
an individual has been formally charged and pled guilty, the City of San
Francisco runs 10 neighborhood courts that operate as true alternatives to
prosecution.e Prosecutors refer eligible misdemeanor cases to volunteer
adjudicators who are residents of the neighborhood and use restorative
justice practices to hold individuals accountable for their actions, address
any underlying problems, and meet the needs of victims. Once individuals comply with the directives of the neighborhood court, prosecutors
dismiss their cases.
a
Stephanie Clifford and Joseph Goldstein, “Brooklyn Prosecutor Limits When He’ll Target
Marijuana, New York Times, July 8, 2014.
b
See Center for Court Innovation, “Denver’s Community Justice Councils,”
http://www.courtinnovation.org/research/denver%E2%80%99s-community-justicecouncils?url=research%2F5%25-2Fall&mode=5&type=all&page=2 and Milwaukee County District
Attorney’s Office, The Milwaukee Community Prosecution Model, http://county.milwaukee.gov/
ImageLibrary/User/jkrueger/Electronic/CP_Program_Description1.pdf.
c
Authors’ interview with Niki Leicht, Executive Director, Operation de Novo, Inc., December 3, 2014.
d
Spurgeon Kennedy et al., Promising Practices in Pretrial Diversion (Washington, DC: National
Association of Pretrial Services Agencies, 2006), 11; for an overview of adult diversion programs
in Hennepin County, see http://www.operationdenovo.org/.
e
For information about community courts, including examples from around the country, see Center
for Court Innovation, “Community Court,” http://www.courtinnovation.org/research/4/publication.
f
City and County of San Francisco, District Attorney, “Neighborhood Courts,”
http://www.sfdistrictattorney.org/index.aspx?page=178.
can serve as leaders in the creation of community-based solutions to crime
problems and in the early identification of defendants suitable for diversion,
especially those whose underlying problems contribute to their criminal behavior—such as mental illness, substance abuse, or homelessness. Population
and outcome analyses can help produce a risk assessment instrument for use at
initial case review.85 (See “What is Risk Assessment?” on page 31.)
To be viable and effective in these cases, alternative to prosecution programs
must have strong links to communities. Such links allow prosecutors to identify
service providers to which they can refer troubled people; to establish realistic
conditions and goals for those diverted; and to build public understanding and
support for their use of diversion and other programs.86
180
VERA INSTITUTE OF JUSTICE
27
RIGHT-SIZING THE JAIL IN NEW ORLEANS
Following the devastation of Hurricane Katrina, and the major issues with the criminal justice system in New Orleans it
revealed, members of the New Orleans City Council asked Vera to conduct
an assessment of the city’s justice system and to identify the areas most in
need of change.a At the time Katrina struck, New Orleans had a population
of 455,188 and the Orleans Parish Prison (the city’s local jail) had a capacity
of 8,000 and typically held more than 6,000. (By comparison, New York City,
with a population of 8.4 million, has a jail population of 11,408.) The jail
was heavily damaged and the Federal Emergency Management Agency
agreed to pay most of the costs of constructing a new one. The sheriff
proposed a new jail of 5,400 beds, despite the drop in the city’s post-storm
population to 370,000.a
Vera’s final report to the city in 2007 looked at ways to reduce the jail population and to create more options for both pretrial defendants and those
sentenced.b Its top two recommendations: address the long wait time from
arrest and booking to arraignment—then averaging 64 days—and create a
pretrial screening process, based on an objective assessment of individual
risk, on which judges would base their release or detention decisions.
Vera established an office in New Orleans to work with city officials (the
Mayor’s Office, the district attorney, the Orleans Public Defender, the
courts, the city council, the New Orleans Police Department, and others),
civic institutions, and organizations with deep roots in the communities
most affected by the criminal justice system to develop and implement
these and other changes. By 2011, a working group of city officials staffed
by Vera had succeeded in reducing the average time before arraignment
from 64 days to 10.5 days. Another working group helped the court implement a system of vertical case allotment that makes much more efficient
use of resources for the public defender and prosecutor offices. And, today, the police in New Orleans issue a far higher percentage of summons
in lieu of arrest than ever before.
In 2012, with support from many of these agencies and community organizations, Vera developed a comprehensive pretrial services system for the
city that includes: universal screening; interviews with defendants; investigation of information prior to the first court appearance; the use of a risk
assessment instrument to guide release decisions; the ability to supervise
defendants; and a court-date reminder system to help defendants meet
their obligations. Finally, as the city nears completion of its new jail, the
mayor’s office has committed to a smaller jail of 1,438 beds.
28
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
181
Vera’s experience in post-Katrina New Orleans demonstrates that reform
is possible but requires thorough data analysis, collaborative and productive relationships with community leaders and elected officials, and
early positive outcomes demonstrating enhanced justice, efficiency, and
public safety.
a
Katy Reckdahl, “Orleans Parish Prison Size Recommendation Issued,” The Times Picayune
November 19, 2010.
b
Vera Institute of Justice, A Report Submitted to the Criminal Justice Committee of the New
Orleans City Council (New York, NY: Vera Institute of Justice, 2007).
PRETRIAL RELEASE AND BAIL
Once a person has been arrested, there is a presumption that the person will be
released pending the outcome of his or her case, unless the individual poses a
danger to persons or property or seems likely to flee.87 In some jurisdictions, po-
lice commanders have the authority to release people directly from the station
house using a bail schedule. In most places, however, the bail or release decision
is made by a judge, magistrate, or bail commissioner. These officers of the court
have considerable discretion in evaluating the person’s circumstances and making decisions about release. They can set conditions or require assurances, such
as bail, to facilitate release whenever possible.88 The presumption that defendants should be released unless they present a clear danger or pose a flight risk
to avoid prosecution is rooted in the principle that people are innocent until
proven guilty and should be treated as such. Actual pretrial release practices,
however, are at odds with this fundamental principle, as illustrated by the fact
that today six out of 10 people in jail are detained pretrial.89
In 1990, most felony defendants who were freed from jail pending the resolution of their cases were released on non-financial conditions (comparable
national data on misdemeanor defendants are not available).90 Nearly 20 years
later, in 2009 (the latest year for which data are available), those released on their
own recognizance (also referred to as ROR) made up only 23 percent of all felony
defendants released pretrial.91 While an additional 15 percent were released on
other types of non-financial bail, the remaining 61 percent of defendants were
required to post financial bail, either by providing the whole or a portion of the
total amount or equivalent collateral, or by hiring a bail bondsman to post the
sum in the form of a private surety bond for a non-refundable fee.92 Among 2009
felony cases, private surety bonds accounted for four out of five releases that involved money and close to half of all releases.93 In addition to requiring bail more
frequently, judges also increased bail amounts. The average bail amount in felony
cases increased 43 percent (in constant dollar values) between 1992 and 2009,
from $38,800 to $55,400.94 As a result of these factors, more and more defendants
remain in jail simply because they cannot pay their way out.
182
VERA INSTITUTE OF JUSTICE
29
Financial and non-financial release conditions
Felony defendants who were freed from jail pending the resolution of their cases
were more likely to have been released on recognizance or other non-financial
conditions in 1990 than in 2009 and were more likely to have been released on
private bonds or other financial conditions in 2009 than in 1990.
60%
%
RO
61
% OF RELEASES
R,
ET
C.
C.
T
,E
ND
%
40
1990
BO
38%
2009
In the years since Vera launched The Manhattan Bail Project in 1961—the nation’s first experiment with pretrial services—numerous studies have pointed
to the same, highly reliable indicators associated with success or failure on release during the pretrial period (i.e., whether or not defendants stay out of trouble or show up to court when required).95 In particular, community ties through
family and work are strong predictors of success, while a record of prior convictions, especially felonies, a history of juvenile arrests, and a history of failure
to appear in court are associated with failure.96 Even for those with some risk
of failure, the chance of success can be improved and the risk mitigated with
additional support and supervision in the community. Noticeably missing from
either list is the financial means to pay bail, which is not a strong predictor of
pretrial success (defined as remaining arrest-free during the pretrial period and
appearing at scheduled court dates).97 Indeed, as bail amounts increased, pretrial failure rates remained steady at about 30 percent.98
Putting this research into practice is within the reach of most jurisdictions.99
Using these risk factors—and any others chosen by the court—the court or
pretrial services agency administers the assessments. These typically involve
gathering information on the defendant’s criminal history as well as requesting
personal information (e.g., length of residence at current address, current employment status, etc.) from the defendant and verifying it through phone calls.
30
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
183
WHAT IS RISK ASSESSMENT?a
The foundation of good criminal justice and correctional practices is the administration of a validated risk or risk and needs
assessment tool to defendants and offenders. Risk assessment instruments
measure the likelihood that a person will reoffend if or when released
into the community. Needs assessments identify a person’s criminogenic
needs—that is, personal deficits and circumstances known to predict criminal activity if not changed.
Today’s assessment tools measure static (those things that can’t be
changed, such as age, criminal history, etc.) and dynamic (those that can,
such as drug addiction, anti-social peers, etc.) risk factors, criminogenic
needs, and strengths or protective factors present in a person’s behavior,
life, or history. There are a variety of assessment tools available for different
purposes. Some are proprietary while others are available at no cost. Whatever tool is used in whatever context, states and counties must validate
them using data from their own populations.
Assessment tools are used to some degree in all states and in many counties
at a number of decision points in the criminal justice process and in a
variety of settings. Judges and releasing authorities use information from
assessment tools to guide decisions regarding pretrial release or detention
and release on parole; corrections agencies use them for placement within
correctional facilities, assignment to supervision level or to specialized
caseloads, and for recommendations regarding conditions of release.
Since the best tools evaluate the person’s dynamic or changeable risk
factors and needs, they should be re-administered routinely to determine
whether current supervision or custody levels and programming are still
appropriate.
A 2012 survey conducted by Vera found that a majority of community supervision agencies and releasing authorities routinely utilize assessment
tools. Responses from 72 agencies across 41 states indicated that 82 percent of respondents regularly assessed both risk and need. While these
self-reported numbers may be inflated, the responses do show correctional agency awareness of the importance of assessments.
a
Adapted from Peggy McGarry et al., The Potential of Community Corrections to Improve Safety
and Reduce Incarceration (New York, NY: Vera Institute of Justice, 2013), p. 16.
Each factor of the collected information is assigned a numerical score weighted
to its relevance to pretrial failure. The greater the association of the factor with
pretrial failure, the higher the score assigned to it.100
184
VERA INSTITUTE OF JUSTICE
31
What’s keeping them in?
In this view of 2013 New York City jail data, more than 50% of jail inmates held
until case disposition remained in jail because they couldn’t afford bail of $2,500
or less. Most of these were misdemeanor cases.
Low bail = $2,500 or less.
13%
Felony,
low bail
41%
Misdemeanor
or Violation,
low bail
42%
Felony, high
or no bail
4%
Misdemeanor or
Violation, high bail
Money, or the
lack thereof, is
now the most
important factor
in determining
whether someone is
held in jail pretrial.
32
Despite the predictive accuracy of risk assessments, few of the more than
3,000 court systems in the United States rely on these tools to make decisions
about pretrial release. Some jurisdictions have implemented bail schedules
in the interest of standardizing bail amounts. These link bail amounts to the
severity of the initial charge, with criminal charge serving as a proxy for risk of
re-arrest and flight, and the bail amount meant to mitigate that risk.101 Unfortunately, the severity of the initial charge(s)—a decision entirely within the
discretion of the prosecutor—has not been shown to be a good predictor of
public safety or appearance in court. And this practice can lead to some serious unintended consequences for both individuals and public safety: low-risk
defendants who cannot afford to post bail linger in jail, while some high-risk
defendants are released because they can afford a large bail amount.102
Money, or the lack thereof, is now the most important factor in determining
whether someone is held in jail pretrial. Almost everyone is offered monetary
bail, but the majority of defendants cannot raise the money quickly or, in some
cases, at all. Many who cannot make bail initially will be released at some point
pending trial. However, 38 percent of felony defendants will spend the entirety of their pretrial periods in jail.103 Yet, only one in ten of these defendants is
detained because he or she is denied bail. The rest simply cannot afford the bail
amount the judge sets.104 For example, in New York City in 2013, 54 percent of
jail inmates held until their cases had been disposed remained in jail because
they could not afford bail of $2,500 or less—with 31 percent of the non-felony
defendants held on bond amounts of $500 or less.105
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
185
FACILITATING PRETRIAL
RELEASE
Risk assessment. Kentucky has a single
statewide agency that assesses all defendants using a locally validated risk
assessment instrument. In recent years,
the court has released 70 percent of all defendants pretrial, with only four percent requiring bail.a Outcomes for people released without monetary bail in
Kentucky are far better than for those released nationally with such bail. In
Kentucky, just eight percent of defendants at liberty in the community were
rearrested during the pretrial period and 10 percent missed a court date.b
Among people released on bail nationwide, 16 percent were rearrested and
17 percent missed a court date.c
Early bail hearings. A growing number of jurisdictions are moving to hold
most bail hearings within 24 hours of arrest—a move that is crucial given
recent research that shows long-term outcomes are considerably worse for
defendants held in jail longer than 24 hours, even if they are later released.d
There are two ways to achieve this: holding bail hearings within 24 hours of
arrest and authorizing pretrial services agencies to release defendants assessed as low risk. In Delaware, magistrates work around the clock to review
cases and make initial bail determinations (in part by using a risk assessment
instrument) within the first 24 hours of arrest.e In Connecticut, the pretrial
services agency assesses and releases low-risk defendants at their discretion,
reporting an 11 percent failure to appear rate among those released.f
Pretrial supervision. Developing the capacity to monitor and assist defendants during the pretrial period makes it possible for judges and other
court officers who make release and detention decisions to release higher-risk people who would otherwise be detained pending trial. The work
with defendants typically involves establishing specific parameters for their
behavior during the pretrial period and linking them with service providers in the community to help them address longstanding problems and
remind them about upcoming court dates.g Washington, DC’s Pretrial Services Agency (DCPTS) has a very robust release and supervision program:
85 percent of defendants are released on ROR or with conditions supervised by DCPTS—and of that 85 percent, in 2012, just 11 percent were
rearrested while released, and 11 percent failed to appear.h
In 2006, Cocinino County, Arizona found that about 23 percent of the jail
population were defendants who were detained after failing to appear at
scheduled court dates. The county tested several court reminder systems for
defendants who received citations in the field. The failure to appear rate was
reduced from 25 percent in the control group to six percent in the reminder
186
VERA INSTITUTE OF JUSTICE
33
group when the caller spoke directly to the defendant, 15 percent when a
message was left with another person, and 21 percent when a message was
left on an answering service.i In this and other areas, research shows that
tailoring release conditions to a defendant’s circumstances both facilitates
release and increases success during the pretrial period.j
Tara Boh Klute and Mark Heyerly, Report on Impact of House Bill 463: Outcomes, Challenges and
Recommendations (Frankfurt, KY: Pretrial Services, Administrative Office of the Courts, 2012).
b
Ibid.
c
Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009-Statistical Tables (Washington,
DC: Bureau of Justice Statistics, Department of Justice, 2013)
d
Laura and John Arnold Foundation, Research Summary: Pretrial Criminal Justice Research (New York,
NY: Laura and John Arnold Foundation, 2013).
e
Alan Davis, Legal Memorandum No.11-294 (Georgetown, DE: Delaware Justice of the Peace
Courts, 2011).
f
See State of Connecticut, Judicial Branch, Adult Services Bail Intake/Assessment Procedures 4.1
(Connecticut: Court Support Services Division, 2013); James Carrollo, bail regional manager, Adult
Probation and Bail Services, Connecticut Court Support Services Division, telephone interview by
Vera, on April 8, 2014).
g
Donna Makowiecki and Thomas J. Wolf, “Enter...Stage Left...U.S. Pretrial Services,” Federal Probation 71, no. 2 (2007): 7-9; see also William Henry, “The Pretrial Services Act: 25 Years Later,” Federal
Probation 71, no. 2 (2007): 16.
h
Pretrial Services Agency of the District of Columbia, Congressional Budget Justification and
Performance Budget Request, Fiscal Year 2014 (April 2013), 7.
i
Marie VanNostrand, Kenneth Rose, and Kimberly Weibrecht, State of the Science of Pretrial Release
Recommendations and Supervision (Washington, DC: Pretrial Justice Institute, 2011), 17-19.
j
Ibid., pp. 27-29.
a
Judges need not rely
on bail. There are
other options for the
safe release of many
more defendants
either on their own
recognizance or with
the aid of special
conditions and
supervision.
34
As this illustrates, bail amounts are not set in relation to an individual’s ability to
pay. This fact hurts some groups more than others, given socio-economic disparities in the United States.106 A recent study shows that although black men are
detained pretrial at higher rates than white men or black or white women, bail
amounts are not set higher for them.107 Rather, as stated above, black men appear
to be caught in a cycle of disadvantage: incarcerated at higher rates and, therefore,
more likely to be unemployed and/or in debt, they have more trouble posting bail.
When out-of-reach bail amounts are combined with overloaded courts, a
situation arises in which defendants can spend more time in jail pretrial than
the longest sentence they could receive if convicted.108 These cases, in particular, turn our ideals about justice upside down. Sentenced to “time served” and
released, the system punishes these individuals while they are presumed to be
innocent, and then releases them once they are found guilty.
Building on the broad discretion judges have in deciding whether or not to release someone pretrial and the sizeable body of evidence about how to set release
conditions, judges need not rely on bail. There are other options for the safe release
of many more defendants either on their own recognizance or with the aid of
special conditions and supervision. These options, deployed under the umbrella
term of pretrial services, require jurisdictions to develop the capacity to conduct
formal risk assessments, to speed the time from arrest to initial bail hearing, and to
invest in pretrial supervision resources to enable the non-financial release of those
deemed too high a risk for ROR. Most important, the success of pretrial services
depends on the trust of and appropriate use by the court or its designees.
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
187
VERA INSTITUTE OF JUSTICE
188
35
D E TA I N E D
Released from custody
IN JAIL
PRETRIAL
RELEASE
ASSESSMENT
• Release with:
> Non-Financial
Conditions
> Pretrial
Supervision
> Financial
Conditions
•R
eferral to
Diversion
Programs
CHARGE
•R
elease on
Recognizance
•D
ecline to
Prosecute
Detained in jail, sentenced to custody,
or revoked back to custody for violation
ARREST
• Cite & Release
•R
eferral to
Services or
Treatment
COMMUNITY
SUPERVISION
& RE-ENTRY
ARRAIGNMENT
C A S E
• Referral to: > Diversion
Programs
> ProblemSolving Court
•D
ismiss Charge
IN JAIL
TRIAL OR PLEA
NEGOTIATION
RELEASE FOR
TIME SERVED
ACCEPT PLEA
D E TA I N E D
$
BAIL REVIEW
P R O C E S S I N G
• Release with: > Non-Financial
Conditions
> Pretrial
Supervision
> Financial
Conditions
•R
elease on
Recognizance
CUSTODIAL
SENTENCE
DISPOSITION
& SENTENCING
GUILTY
NOT
GUILTY
CUSTODIAL
SENTENCE
RELEASE FOR
TIME SERVED
COMMUNITY
SUPERVISION
& RE-ENTRY
Diversion and release opportunities during the typical criminal case trajectory
CASE PROCESSING
Given the large proportion of defendants detained pending the resolution of
their cases, the speed—or lack thereof—at which cases are processed through
the courts has a direct impact on jail populations. When defendants are detained throughout the process, the duration of the case equals the number of
days, weeks, or months a defendant is held in jail. Even when a defendant is
released at some point prior to being adjudicated, delays earlier in the process
extend his or her time behind bars. A large sample of defendants in Los Angeles
County, all accused of felony crimes and all detained pretrial, spent 53 days on
average in jail by the time their cases were resolved.109 More than 25 percent of
the people in jail pretrial had stays longer than 80 days, with more than 800
defendants spending in excess of 200 days in jail until case resolution.110
Unlike previous decision points that focus on a moment in time, the processing of a case encompasses the entire adjudication process, from a person’s initial
appearance in court through disposition and sentencing. A slow pace is most evident in the official delays that occur at different points in the process. Postponements or continuances occur routinely, despite laws meant to guarantee a speedy
trial. 111 In larger jurisdictions, with high-volume court dockets, the sheer number
Lack of readiness,
logistical challenges,
and the tactical
use of delays
are particularly
instructive to
examine in the
context of their
impact on jail
of cases coupled with the routine use of postponements can cause chronic case
backlogs that leave people waiting in jail for months, sometimes years, even
when the case is ultimately dismissed.112 A recent analysis of New Jersey’s jail
population, for example, revealed that nearly half of all pending cases, mostly
involving defendants detained pretrial, were in backlog status.113
Cases can be postponed or continued for any number of reasons, and literally
everyone involved in the adjudication of a case—courts and potentially also juries and witnesses, pretrial services, prosecutors and defense attorneys, police,
and jail administrators—can either initiate or indirectly cause a postponement.
Of all the possible causes, three broad categories—lack of readiness, logistical
challenges, and the tactical use of delays—are particularly instructive to examine in the context of their impact on jail populations.
Lack of readiness on both sides of a case is a leading reason for delays, and
may be in part a result of an overburdened court system flooded by huge misdemeanor case loads.114 A study of 54 misdemeanor marijuana cases scheduled
to go to trial in the Bronx revealed that the district attorney requested adjournments in 80 percent of cases because the prosecutor was not ready to proceed—
meaning they were not ready on 75 of 89 trial dates.115
Aside from the complexities of an actual trial—and very few cases go to
trial—the processing of a criminal case includes many stages and events, all of
which require coordination among different agencies and individuals.116 This
is a logistical challenge under the best circumstances and a morass under the
worst. Complicated plea or sentencing negotiations; defendants who fail to
show up in court for hearings because of miscommunication between the court
populations.
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INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
189
CASE PROCESSING REFORMS
Time limits with real consequences. Overcrowded conditions in the Bernalillo County Jail caused primarily by a
backlog of roughly 3,000 cases, many involving defendants
held pretrial, compelled the New Mexico Supreme Court
to announce new rules aimed at limiting court delays.a Under the new rules, which
take effect in February 2015, all criminal cases will be assigned to one of three tracks
according to the complexity of the case and must adhere to a specific timeline.b The
clock starts at arraignment and a postponement requires the presiding judge to issue
a written finding of good cause. The rules are also designed to prevent postponing
trials to accommodate prolonged plea bargaining as well as last-minute pleas filed
on the eve of a trial. Importantly, both sides in a case will be subject to sanctions and
fines for failing to meet the established deadlines, and the supreme court will also be
tracking which judges are allowing cases to fall behind the timetables.
Special backlog courts. Some jurisdictions, including both Bronx County, New York,
and Bernalillo County, New Mexico, have recently enlisted the services of judges from
other counties or hired new judges to oversee special court dockets designed to clear
backlogged cases. In the Bronx, cases that are more than two years old receive priority
and judges assigned to these cases are mandated to either bring the case to trial or
compel the two sides to reach a plea agreement.c
Case consolidation. To address the inherent inefficiencies and delays that happen
when a person has open cases in more than one court—cases that may range in nature and severity from traffic violations to felonies—officials in Orange County, California adopted a policy to “package” cases. Under the policy, a single justice center
becomes the physical locus and administrative body for resolving all open cases
countywide that involve a particular defendant.d Implementing the policy required
updating and consolidating separate court databases to enable easy searches and
access to all related files. Case consolidation not only speeds case processing, reducing stays in jail pretrial, it also generates more accurate information for jail administrators about a person’s expected length of stay.
a
Mike Gallagher, “New Rule Aims To Unclog Courts, Cut Jail Population,” Albuquerque Journal, November 13,
2014, http://www.abqjournal.com/495530/news/new-rule-aims-to-unclog-courts.html; for recommendations to
reduce jail overcrowding in Bernalillo County, see Bernalillo County Criminal Justice Reform Commission, Preliminary Report to Interim Courts, Corrections and Justice Committee, September 2014 at www.nmlegis.gov/LCS/
handouts/CJRS%20092414%20Item%203%20BernCo%20Crim%20Justice%20Reform%20
Commission%20report.pdf
b
Ibid.
c
James McKinley, “Bronx Courts Make Gains in Reducing Court Backlogs,” The New York Times, December
11, 2013; New York State Unified Court System (NY Courts), “State Court System Reports Dramatic Cut in
Bronx Felony Case Inventory, Announces Plan to Slash the Borough’s Misdemeanor Backlog and Names
New Bronx Appointment,” press release (New York: NY Courts, December 11, 2013),
http://www.nycourts.gov/press/PDFs/PR13_14a.pdf.
d
Cherie Garofalo, The Impact of Coordinating Multiple Criminal Cases in the Multiple Court Sites of the
Orange County Superior Court (Williamsburg, VA: National Center for State Courts, Institute for Court
Management, 2011).
190
VERA INSTITUTE OF JUSTICE
37
and jail; problems producing witnesses or evidence; and scheduling conflicts,
especially involving defendants that have pending cases in more than one
court, are among the many logistical problems that commonly occur. Misdemeanor courts are also often training grounds for young prosecutors and defense attorneys, and their cases typically take longer to resolve than they might
if more seasoned attorneys were handling them.117
Both sides in a criminal case may use postponements for tactical purposes.
Prosecutors might delay a case in an attempt to pressure a defendant to plead
guilty, especially if the person is held in jail and prolonging the case will extend
his or her time behind bars.118 On their part, defenders believe that some delays
may benefit their clients, since the quality of the prosecution’s evidence usually
degrades with time. In particular, delays can make it harder for prosecutors to
maintain contact with key witnesses and may also have a negative effect on
the credibility of witness testimony because memories fade over time.119
Delays in case processing come at great cost to the counties and municipalities
holding defendants pretrial; to the agencies involved as cases drag on with multiple court appearances and conferences; to victims for whom justice is delayed;
and to the detained people and their families in severed ties, lost wages, accumulated debt, and other burdens commonly associated with an extended stay in jail.
Recognizing that greater efficiencies in case processing benefit everyone, jurisdictions have made efforts to significantly reduce delays and clear case backlogs.
DISPOSITION AND SENTENCING
A criminal case comes to its conclusion at the point of disposition and sentencing. This can occur at arraignment or any point thereafter. In most cases,
defendants plead or are found guilty by a court, have their case dismissed, or
are found not guilty. Since 94 to 97 percent of criminal convictions are reached
through a negotiated plea, much of the decision-making power in disposition
remains with the prosecutor, who can leverage the initial charge decision and
the amount of money bail requested to bring a case more quickly to a close
with a plea deal.120 Particularly for defendants on low-level charges—who have
been detained pretrial due to an inability to pay bail, a lack of pretrial diversion
options, or an inability to qualify for those options that are available—a guilty
plea may, paradoxically, be the fastest way to get out of jail.121
Even at the point of disposition, there are options that allow for the release
of people from custody without their having to accept a permanent guilty plea,
which can have lasting collateral consequences for employment, housing, immigration status, and access to public benefits. Alternative resolutions such as
conditional discharge, deferred prosecution, or adjournment in contemplation
of dismissal provide for release conditioned by continuing lawful behavior with
ongoing supervision and, in some cases, other requirements like participation
in a treatment program or community service. If the conditions of the discharge
or adjournment are met, the case will be dismissed. Some problem-solving
courts will require that participants enter a guilty plea in order to participate,
38
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
191
INVESTING IN ALTERNATIVE DISPOSITIONS
Problem-solving courts. Lawmakers in Indiana recently authorized the
use of problem-solving courts as a condition of a misdemeanor sentence.
Even a county sheriff can refer someone to a problem-solving court.a Indiana is among a growing number of states and localities that are investing in problem-solving courts. These courts tend to focus on groups of people with distinct
needs—substance abuse, mental illness, homelessness, post-traumatic stress disorder as a result of
participation in combat, and a history of prostitution—and aim to hold people accountable while
also addressing their needs. They can be a way for individuals to wipe the slate clean, since success
typically guarantees that prosecutors will vacate a guilty plea, if filed, and dismiss the charges.
As of 2013, approximately 2,800 drug courts and more than 300 mental health courts were operating in jurisdictions across the country, with other types of problem-solving courts in development.b
While many of these courts are limited to misdemeanor cases, many others, such as one in Baltimore,
specifically handle felony drug cases, or other felony cases where the defendant has a substance use
disorder, through referrals from the district attorney’s office.c Equally innovative, Michigan passed
laws in 2013 that provide a framework for counties to establish and run mental health courts and
explicitly allow participation by people who have previously participated in a similar program.d
Pretrial diversion. Some states are expanding their post-charge diversion programs so that more defendants can participate. In 2013, for example, New Jersey’s conditional dismissal program in the state’s
misdemeanor court expanded to defendants charged with non-drug misdemeanor crimes, such as trespassing and shoplifting.e Similarly, in the same year, the Alabama legislature authorized district attorneys
to establish pretrial diversion programs in their jurisdictions open to defendants charged with misdemeanors, traffic offenses, property crimes, most drug crimes, and other offenses within prescribed limits.f
Finally, understanding that most behavior change is slow and subject to setbacks, Colorado passed a
law in 2013 allowing judges to impose additional conditions rather than pull individuals out of the state’s
deferred judgment program following any violation of program terms in order to enhance the likelihood
of eventual success by participants in the program.g
Indiana HB 1016 (2013).
For information on drug courts, see National Institute of Justice, “Drug Courts,” http://www.nij.gov/topics/courts/drug-courts/
Pages/welcome.aspx. For information on mental health courts, see Council of State Governments Justice Center, “Mental Health
Courts,” http://csgjusticecenter.org/mental-health-court-project/ and Substance Abuse and Mental Health Administration, “Adult
Mental Health Treatment Court Database,” http://gainscenter.samhsa.gov/grant_programs/adultmhc.asp. For information on
newly created problem-solving courts, see Ram Subramanian and Rebecka Moreno, Recalibrating Justice: A Review of 2013 State
Sentencing and Corrections Trends (New York, NY: Vera Institute of Justice, 2014) 19-21.
c
See Juliette Mackin et al., Baltimore City Circuit Court Adult Drug Treatment Court and Felony Diversion Initiative: Outcome and
Cost Evaluation Final Report, (Portland, OR: NPS Research, 2009).
d
Michigan HB 4694 (2013). This law was tie-barred with three other enacted bills—HB 4695, HB 4696 and HB 4697— all of which deal
with more detailed aspects of mental health court operations, procedures, and requirements.
e
New Jersey A 3598. NJ has two diversion programs, the Pre-Trial Intervention Program (PTI) and the Conditional Discharge
Program (CDP), both of which result in the dismissal of charges upon successful completion. PTI only applies to felonies, and CDP
only applies to misdemeanors and (now) petty offenses. Upon successful completion of the program, charges are dismissed and
individuals can apply to have their records expunged six months after dismissal.
f
Alabama HB 494 (2013). This law applies only to district attorneys operating in the absence of a local act. Additional laws were
passed in 2013 granting the authority to establish discretionary pretrial diversion programs to any governing body of a municipality generally (HB 648) as well as specifically to Huntsville (HB 452), Geneva County (HB 495), Irondale (HB 638), Fultondale (HB
644), Hoover (HB 645), St. Clair County (HB 649), and Alabaster (SB 467).
g
Colorado SB 250 (2013).
a
b
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VERA INSTITUTE OF JUSTICE
39
with sentencing deferred pending completion of programming and conditions.
Successful participants will have those pleas vacated and charges either dismissed or reduced, or will be given a non-custodial sentence.
For those whose cases are not dismissed or deferred pending dismissal in
some manner, a guilty plea or finding can lead to a custodial sentence in state
prison or jail, a period of confinement in a residential community corrections
or treatment facility, a sentence of probation supervision, or a split sentence
of confinement followed by a period of community supervision. Those who
have already served time in jail pre-disposition may receive a sentence of
time served: for low-level cases, time served may actually exceed the custodial
sentence they could have received if convicted of the offense. Those ultimately
serving time in jails will primarily be lower-level felons and misdemeanants,
serving sentences on average of less than one year.
As the overall size of the jail population has risen, so too has the number
of people held in jails post-conviction—despite the fact that the sentenced
population has been steadily declining as a percentage of the jail population
since the 1990s. In 1990, sentenced inmates represented 48.5 percent of the
population.122 By 2000, it had declined to 44 percent, and by 2013, the sentenced
population was 38 percent of the total jail population.123 This decline does not
mean that fewer people are receiving custodial jail sentences, particularly in
light of the concurrent rise in the number of sentenced felons serving lengthy
sentences in state prisons. It is simply that the number of people held in jails
pretrial has been rising at a faster rate, and these people are staying for longer
periods of time. As noted above, some of those pretrial days will count towards
time served but will not later be captured statistically as post-conviction time.
In light of decades of mass incarceration and the myriad collateral consequences that can beset a person with a criminal record, many jurisdictions are
now moving to resolve more cases in ways that hold people accountable without using incarceration as punishment or burdening them with a criminal conviction.124 Building on lessons learned from the first generation of alternatives
to incarceration, including problem-solving courts and post-charge diversion
programs, jurisdictions are working to create clear and focused eligibility criteria and use validated risk and needs assessment tools to better match people
with programs.125 They are also trying to improve success rates and address one
of the most persistent challenges—finding ways to respond effectively to noncompliant participants instead of punishing bad behavior with jail time.126
40
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
193
USING ADMINISTRATIVE DATA TO
PRIORITIZE JAIL REENTRY SERVICES
Prior to the late 1990s, jail reentry and jail discharge
planning were virtually unheard of, and few jails
provided services to support people as they left
custody. However, in the past decade, jails have
begun to implement new service models with the aim of reducing recidivism. While they are an important innovation, jail reentry services typically
have inadequate funding and programming, and most are swamped by the
extent of the demand.
In collaboration with the New York City Department of Correction (DOC),
Vera’s Substance Use and Mental Health Program developed and validated
(for men) a low-cost and easy-to-implement tool—called the Service Priority
Indicator (SPI)—that jail officials could use to identify those who would benefit most from access to the system’s limited discharge planning resources.a
Using existing data recorded in the DOC’s jail management database, researchers identified four risk factors for recidivism—age at jail admission, current charge, number of prior DOC admissions, and recent DOC admissions—
and assigned a score to each based on the strength of its correlation with
readmission to DOC custody. The scores, which range from zero to seven,
were then grouped into four service priority levels, equivalent to having low,
medium, high, or very high risk of readmission, with those at the greatest risk
of recidivism also identified as very high priority for receiving discharge planning services. Vera’s research also found that those identified by the SPI as
having a very high service priority tended to stay in jail longer and were more
likely to be released upon completion of their sentences—offering a window
of opportunity to provide jail-to-community reentry services.
Qing Wei and Jim Parsons, Using Administrative Data to Prioritize Jail Reentry Services: Findings
from the comprehensive Transition Planning Project (New York, NY: Vera Institute of Justice, 2012).
a
REENTRY AND COMMUNITY SUPERVISION
There are several ways in which sentenced offenders come under community
supervision. They can be directly sentenced to probation, their sentence can be
split between terms of incarceration and probation, or part of their custodial
sentence can be served in the community on parole at the discretion of the
paroling authorities.
Community supervision usually entails the adherence to certain conditions set
by the judge if on probation, or the paroling authority if on parole. In addition, the
supervising agency or agent can set the type and intensity of programming and
other rules, such as the number of required office visits. People who fail to follow
their conditions face sanctions, including revocation to prison or jail.
194
VERA INSTITUTE OF JUSTICE
41
A term of
community
supervision can be
of great benefit to
the person and his
or her family, reduce
the likelihood of
future incarceration,
and make a positive
contribution to
public safety.
Although in some jurisdictions the conditions or rules of supervision are
guided by risk and needs assessments, in practice many do not conduct thorough assessments and end up applying a generic set of requirements for all
people on supervision. In the case of low-risk offenders, this can actually increase their risk of failure.127
Positive activities like school, work, and religious participation can be impeded by unnecessarily restrictive terms of supervision and obligations, including
restrictions on movement, having a driver’s license suspended, curfews, frequent reporting, and mandatory programming that does not reduce risk.128 In
some jurisdictions, a violation as minor as missing a scheduled appointment
can result in an immediate return to jail; and when a former prisoner or probationer is accused of violating the terms of his or her conditional release, he or
she is often sent to jail to await the adjudication of the suspected violation.
However, when the person on supervision and the supervising officer
thoughtfully incorporate the results of a risk and needs assessment into the
terms of supervision and needed services and supports are available, then a
term of community supervision can be of great benefit to the person and his
or her family, reduce the likelihood of future incarceration, and make a positive
contribution to public safety.129
IMPROVING COMMUNITY
SUPERVISION AND
RESTRUCTURING CRIMINAL
JUSTICE DEBT
Community supervision: calibrating conditions to risk. The most important change needed to improve supervision and reduce recidivism is
the adoption and careful implementation of a validated risk and needs
assessment tool at the time of release from jail, when a person is placed on
probation, and at regular intervals throughout the supervision term. While
growing numbers of states have mandated that state agencies use such
tools and their results to guide supervision, their use on the local level
needs to be more widely adopted.a
Jurisdictions interested in instituting or expanding supervision options for
low-risk offenders might look to Georgia, which recently implemented an
automated reporting system for the roughly 80,000 low-risk probationers
under supervision.b The call-in system triggers further scrutiny from the supervising officer if a probationer provides a non-standard response to a series of questions. Georgia, which has approximately 820 probation officers,
has been able to allocate more resources to the 25,000 medium- and highrisk probationers under supervision by using this system, thus increasing
public safety and improving supervision quality. The system also reduced
the cost of supervising low-risk offenders from $1.68 to $0.45 per day.c
42
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
195
Implementing graduated responses in community supervision. More
and more jurisdictions are relying on graduated responses and sanctions
to respond to people who violate the conditions of their release or to
reward the accomplishments of those who are making marked improvements in compliance.d Agencies have developed grids that match types
of rule-breaking with particular punishments that increase in severity depending on the number of times a person has broken a particular rule or
the number of rules broken at any one time and have created an array of
rewards or recognition according to the level or length of compliance and
achievement (securing a GED, for example). In a number of jurisdictions,
such as Oregon and Kansas, technical revocations went down after implementing such policies.e
Implementing other evidence-based practices. A critical piece of evidence-based practice is determining the level of supervision and the intensity of programming and interventions needed—through the use of validated risk and needs assessments—and then applying the results across
populations in order to ensure that the appropriate resources are available.
Once risk and needs are identified, only programs and strategies that have
been proven to work should be employed in addressing those risks and
needs. For example, research has amply demonstrated the effectiveness of
motivational interviewing and the use of options like cognitive-behavioral
treatment, which have been adopted in many jurisdictions.f There are still
many agencies, however, that have yet to integrate these and other practices into their supervision.
Making basic reentry tools available to everyone leaving confinement.
While challenged with high inmate turnover and heterogeneous populations, jails are nonetheless well-situated for reentry efforts. They typically
are located near the communities to which people in jail will return, making
outreach efforts easy to accomplish. Using a risk and needs assessment
instrument, jail reentry staff can work with community providers to develop
reentry plans for people leaving jail that target specific needs.g Jurisdictions such as Douglas County in Kansas and Davidson County in Tennessee
have introduced case planning and evidence-based programming in jail,
and have developed networks of reentry providers that meet people while
they are still in jail, work with them to build their case plans, and meet them
on release day to assist with the transition home.h
Allowing debt payment plans. Professionals who supervise people in the
community, pretrial or post-conviction, understand the heavy burden of
criminal justice debt—which often drives many people back to jail—but
they lack the authority to adjust payments or provide relief in other ways.
Efforts to implement reforms in this area can face considerable resistance,
since fines and fees help to fund courts, pretrial services, jails, and com-
196
VERA INSTITUTE OF JUSTICE
43
munity supervision. In jurisdictions where budgets are especially tight, the
pressure to collect fees in full can be great.i Despite these challenges, some
jurisdictions are making efforts to reduce criminal justice debt burdens.
Community supervision agencies in South Carolina have the authority to
restructure payment plans, stretching a person’s criminal justice debt over
more years as a way to reduce monthly payments.j Washington State allows judges to waive the interest people have accrued on debt to the criminal justice system that is not restitution, where people show that the payment of the accrued interest will cause hardship for them and their family,
or if they have made a good faith effort to pay.k Maine allows community
service in lieu of cash payments, and Ohio, West Virginia, and New York
allow for modified child support payments following a period of incarceration.l Even where such options exist, however, people may not know about
them or be able to navigate the court process to take advantage of these
rights—especially those who do not have a supervision agent in the community from whom they can seek advice and assistance.
a
Nancy LaVigne, et al, Justice Reinvestment Initiative State Assessment Report (Washington, DC:
The Urban Institute, 2014).
b
J. Ginn, Georgia Probation Program Lets Some Offenders Phone It In, (New York, NY: Council of
State Governments, 2014), at http://www.csg.org/pubs/capitolideas/enews/issue100_2.aspx.
c
Ibid.
d
For example see Peggy McGarry et al., The Potential of Community Corrections to Improve
Safety and Reduce Incarceration (New York, NY: Vera Institute of Justice, July 2013), 18-19; and
Lauren-Brooke Eisen and Juliene James, Reallocating Justice Resources: A Review of State 2011
Sentencing Trends (New York, NY: Vera Institute of Justice, 2012), 14-15.
e
See for example, Oregon Department of Corrections, The Effectiveness of Community-Based
Sanctions in Reducing Recidivism (Salem, OR: Oregon Department of Corrections, 2002), 25-27;
and Kansas Department of Corrections, Kansas Behavior Response/Adjustment Grid,
http://www.doc.ks.gov/kdoc-policies/AdultIMPP/chapter-14/14137.pdf.
f
See, for example, Steve Aos, Evidence-based Adult Corrections Programs: What Works and
What Does Not (Olympia, WA: Washington State Institute of Public Policy, 2006); and Janeen
Buck Willison, et al., Process and Systems Change Evaluation Findings from the Transition from
Jail to Community Initiative (Washington, DC: Urban Institute, 2008).
g
See Jim Parsons, “Addressing the Unique Challenges of Jail Reentry,” in Offender Reentry, edited by M. Crow and J. Ortiz Smykla (Burlington, MA: Jones and Bartlett Learning, 2014), 105-123;
and Amy Solomon et al., Life after Lockup, (Washington, DC: Urban Institute, 2008).
h
Willison, et al., 2008.
i
American Civil Liberties Union, In for a Penny: The Rise of America’s New Debtors Prisons, (New
York, NY: American Civil Liberties Union, 2010), 25, 50 and 55; Council on State Governments,
Repaying Debts, (Washington, DC: Council of State Governments and the Bureau of Justice
Assistance, 2007), 33; A. Bannon, M. Nagrecha, and R. Diller, Criminal Justice Debt: a Barrier to
Reentry (New York, NY: Brennan Center for Justice, 2010), 30-31.
j
South Carolina SB 1154 (2010).
k
Washington SB 5423 (2011). This excludes restitution.
l
West Virginia HB 4521 (2012); New York AB 8178 (2009); Maine HP 1032 (2013).
44
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
197
With or without formal supervision, people who have experienced lengthy
jail or prison stays need basic reentry support.130 Most immediate, people being
released from incarceration need valid identification cards—necessary to gain
them access to any benefits to which they may be entitled such as Medicaid—
and assistance with opening a bank account and applying for housing and job
opportunities. If those being released have chronic medical conditions, providing them with medications and referrals to medical care in the community are
fundamental to their functioning. Permanent housing, avenues to education,
and long-term employment come next. At the state level, corrections officials
are making significant efforts to address these reentry needs upon release, but
assistance at the local jail level is far more scarce.
While many factors can diminish a person’s chances of successfully reentering the community, debt is one of the most toxic. Criminal justice fines and fees
follow people from jail and prison back into the community and, combined
with other financial burdens, can become a major barrier to finding and maintaining employment, housing, family relationships, community ties, and stable
mental and physical health—the very conditions known to support success. In
some jurisdictions, non-payment of fines and fees results in immediate arrest
and additional jail time.131 There are accounts of people who deliberately skip
supervision appointments or miss court dates because they cannot pay their
fines, setting in motion a process that eventually will lead them back to jail.132
When fines and fees loom large, some people may actually choose to return to
jail rather than face their debts.133
To end the cycling of people in and out of jail, jurisdictions are taking steps to
improve community supervision by better matching conditions of release to
assessed risk and relying on graduated responses to rule-breaking in place of
automatic jail time. Some jurisdictions have also made progress in developing
jail reentry resources, and a few jurisdictions are tackling through legislation the
issue of debt and the barriers it creates for people trying to get back on their feet.
198
VERA INSTITUTE OF JUSTICE
45
Conclusion
The misuse of jails
is neither inevitable
nor irreversible.
46
Jails matter. Yet against a national backdrop of declining crime rates, most of
the debate about incarceration in recent years has focused on prisons. A significant body of research shows that our reliance on incarceration as a primary
crime control policy has had only a marginal impact on public safety. As a
result, there is an emerging consensus that it has not been worth the fiscal and
human costs. The role that local jails play in this story has not, until recently,
garnered similar attention or analyses. That is starting to change and the new
focus could not be timelier. With nearly 12 million annual admissions—almost
19 times those to state and federal prisons—jails have an impact that is both
far-reaching and profound.
While jails serve an important function in local justice systems—primarily to
hold people who are deemed, by reliable means, unlikely to appear in court or
likely to reoffend if released while their cases are processed—this is no longer
exclusively what jails are or whom they hold. With so many people cycling
through them—some many times over—jurisdictions need to ensure that jails,
while doing their part to keep the public secure, take seriously their responsibility to treat those in their custody with dignity, in settings that are safe, healthy,
and able to help people return quickly to their communities or adjust to serving
their sentences elsewhere. As this report has documented, this is not necessarily what jails do today.
The misuse of jails is neither inevitable nor irreversible. But to chart a different course will take leadership and vision. No single decision or decision
maker in a local justice system determines who fills the local jail. While some
jurisdictions have made strides in developing, implementing, and evaluating
off-ramps from the path that leads to the jailhouse door, change at one point
in the system will have limited impact if other key actors and policies pull in
the opposite direction. To both scale back and improve how jails are used in a
sustainable way, localities must engage all justice system actors in collaborative
study and action. Only in this way can jurisdictions hope to make the systemic
changes needed to stem the tide of people entering jails and to shorten the stay
for those admitted.
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
199
200
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47
ENDNOTES
1 For the number of jail jurisdictions, see Todd D. Minton and Daniela
Golinelli, Jail Inmates at Midyear 2013 - Statistical Tables (Washington,
DC: U.S. Department of Justice, Office of Justice Programs, Bureau of
Justice Statistics, 2014), 1; for the average daily jail population in 2013
see Minton and Golinelli, 2014, 6; for population data from the 2010
census see U.S. Census Bureau, State and Country Quickfacts – Detroit,
Michigan, http://quickfacts.census.gov/qfd/states/26/2622000.html,
and U.S. Census Bureau, State and Country Quickfacts – San Francisco,
California, http://quickfacts.census.gov/qfd/states/06/0667000.html.
2 For the 2013 jail admissions data see, Minton and Golinelli, 2014, 4;
for population data from the 2010 census see U.S. Census Bureau,
State and Country Quickfacts – Los Angeles, California,
http://quickfacts.census.gov/qfd/states/06/0644000.html; and U.S.
Census Bureau, State and Country Quickfacts – New York, New York,
http://quickfacts.census.gov/qfd/states/36/3651000.html. For annual
admissions to state and federal prisons, see E. Ann Carson, Prisoners
in 2013 (Washington, DC: US Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, 2014).
3 For comparison incarceration rates, see International Centre for Prison
Studies, “World Prison Brief,”
http://www.prisonstudies.org/highest-to-lowest/prison-population%20
total?field_region_taxonomy_tid=All&=Apply.
4 Although not explicitly articulated in the Constitution, the presumption
of innocence is regarded as a crucial element of the constitutional right
to due process under the law and “a basic component of a fair trial under
our system of criminal justice.” See Estelle v. Williams, 425 U.S. 501, 503
(1976). The primary import of this presumption today is the allocation
of the burden of proof in criminal trials. See Bell v. Wolfish 441 U.S. 520,
533 (1979). According to this legal doctrine, prosecutors are required to
prove guilt beyond a reasonable doubt. See Coffin v. United States, 156
U.S. 432, 460 (1895) and Kentucky v. Whorton, 441 U.S. 786, 790 (1979)
(Stewart, J., dissenting). At common law, the presumption of innocence
had a wider meaning. It also protected defendants during the time
between charge and conviction, ensuring that most individuals would
remain at liberty prior to trial and that those individuals unable to make
bail and held in pretrial detention were not there to be punished, but
merely held in safe and humane custody in order to return them to court
for trial. See William Blackstone, Commentaries on the Laws of England,
Vol. IV, 297 (1765). Regarding the protections the presumption has
historically implied during the pretrial period, until relatively recently U.S.
law largely conformed with the common law, since bail was presumed
in all non-capital cases. See Judiciary Act of 1798, 1 Stat. 73 §33 (1798).
With statutory changes between the 1960s and 1980s, however, public
safety considerations are now taken when judges make pretrial release
and detention decisions. See Bail Reform Act 1966 and Bail Reform
Act 1984. For defendants held in jail prior to trial—whether for failure
to post bail or due to a potential risk posed to the community—the
presumption continues to protect against the consideration of pretrial
detention as evidence of guilt. See Wolfish, 441 U.S. at 533. For reports
on jail conditions of confinement, see for example, Roy L. Austin, deputy
assistant attorney general, U.S. Department of Justice, Civil Rights
Division, to George Touart, interim county administrator, and Sheriff
David Morgan, Escambia County, Pensacola, FL, Re: Investigation of
the Escambia County Jail, May 22, 2013; Grace Chung Becker, acting
assistant attorney general, U.S. Department of Justice, Civil Rights
Division, and Patrick J. Fitzgerald, United States attorney, Northern
District of Illinois, to Todd H. Stroger, president, Cook County Board, and
Thomas Dart, sheriff, Cook County, Chicago, IL, Re: Cook County Jail,
Chicago, IL, July 11, 2008; Loretta King, acting assistant attorney general,
U.S. Department of Justice, Civil Rights Division, to Marlin N. Gusman,
criminal sheriff, Orleans Parish, New Orleans, LA, Re: Orleans Parish
Prison System, New Orleans, Louisiana, September 11, 2009; Jocelyn
Samuels, acting assistant attorney general, U.S. Department of Justice,
Civil Rights Division, and Preet Bharara, United States attorney, Southern
District of New York, to Mayor Bill de Blasio, Commissioner Joseph
Ponte, NYC Department of Correction, and Zachary Carter, Corporation
Counsel of the City of New York, New York, Re: CRIPA Investigation
of the New York City Department of Correction Jails on Rikers Island,
August 4, 2014; and Jonathan Smith, chief, U.S. Department of Justice,
48
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
Civil Rights Division, Special Litigation Section, and André Birotte, Jr.,
United States Attorney, Central District of California, to Anthony Peck,
deputy county counsel, Monterey Park, CA, and Stephanie Jo Reagan,
principal deputy county counsel, Los Angeles County Department of
Mental Health, Los Angeles, CA, Re: Mental Health Care and Suicide
Prevention Practices at Los Angeles County Jails, June 4, 2014.
5 Doris J. James, Profile of Jail Inmates, 2002, (Washington, DC: U.S.
Department of Justice, Office of Justice Programs, Bureau of Justice
Statistics, 2004), 3.
6 19,903 of 43,456 cases that resulted in jail time were for misdemeanors
or less. See New York City Criminal Justice Agency, Annual Report 2013
(New York: New York City Criminal Justice Agency, 2014), 30.
7 Traffic and vehicular charges made up 26 percent (161,000) of all charges.
See Vera Institute of Justice, Los Angeles County Jail Overcrowding
Reduction Project (Los Angeles, CA: Vera Institute of Justice, 2011),
xv. This study was done prior to the enactment of the Public Safety
Realignment Act (AB 109) of 2011 which transferred a large number of
convicted felony offenders in state prison or on parole to the authority
of California’s 58 counties. For recent research on the impact of AB 109
on jail populations, see Magnus Lofstrom and Steven Raphael, Impact of
Realignment on County Jail Populations (San Francisco, CA: Public Policy
Institute of California, 2013).
8 For example, at least 29 states have taken steps to reform mandatory
penalties since 2000, and many more in the last few years have taken steps
to expand community-based sentencing options, such as drug treatment
probation programs targeting high-risk, previously prison-bound drugaddicted offenders or reclassifying offenses by creating more gradation in
felony levels per type of criminal offense or lowering low-level crimes from
felonies to misdemeanors. For more information regarding recent state
sentencing and corrections reforms, see for example, Adrienne Austin,
Criminal Justice Trends: Key Legislative Changes in Sentencing Policy,
2001-2010 (New York, NY: Vera Institute of Justice, 2010); Lauren-Brooke
Eisen and Juliene James, Reallocating Justice Resources: A Review of
State 2011 Sentencing Trends (New York, NY: Vera Institute of Justice,
2012); Ram Subramanian and Ruth Delaney, Playbook for Change? States
Reconsider Mandatory Sentences (New York, NY: Vera Institute of Justice,
2014); Ram Subramanian and Rebecka Moreno, Drug War Détente? A
Review of State-level Drug Law Reform (New York, NY: Vera Institute of
Justice, 2014); and Ram Subramanian and Rebecka Moreno, Recalibrating
Justice: A Review of 2013 State Sentencing and Corrections Trends (New
York, NY: Vera Institute of Justice, 2014). Also see Alison Lawrence, Trends
in Sentencing and Corrections: State Legislation (Washington, DC: National
Conference of State Legislatures, 2013); Nicole D. Porter, The State of
Sentencing 2013: Developments in Policy and Practice (Washington,
DC: The Sentencing Project, 2014); and Nicole D. Porter, The State of
Sentencing 2012: Developments in Policy and Practice (Washington, DC:
The Sentencing Project, 2013).
9 For information about the impact of the fiscal crisis and low crime rates
on sentencing and corrections, see Ram Subramanian and Rebecca
Tublitz, Realigning Justice Resources: A Review of Population and
Spending Shifts in Prison and Community Corrections (New York, NY:
Vera Institute of Justice, 2012), 20. Also see Alison Shames and Michael
Woodruff, The Continuing Fiscal Crisis in Corrections: Setting A New
Course (New York, NY: Vera Institute of Justice, 2010), 4.
10 For results of public opinion polls which show that most Americans
support alternatives to incarceration for nonviolent offenses, see Pew
Center on the States, Public Opinion on Sentencing and Corrections
Policy in America (Washington, DC: The Pew Charitible Trusts, 2012),
also see Jill Mizell, An Overview of Public Opinion and Discourse
on Criminal Justice Issues (New York, NY: The Opportunity Agenda,
2014), 19-22. For research demonstrating that community-based drug
treatment programs, for example, are more effective than incarceration
for drug offenders, see S. Aos et al., Washington’s Drug Offender
Sentencing Alternative: An Evaluation Of Benefits And Costs (Olympia,
WA: Washington State Institute for Public Policy, 2005); M. Finigan et
al., The Impact of a Mature Drug Court over 10 Years of Operation:
201
Recidivism and Costs (Portland, Oregon: NPC Research, Inc., 2007); S. B.
Rossman et al., The Multi-Site Adult Drug Court Evaluation: The Impact
of Drug Courts (Washington, DC: Urban Institute, Justice Policy Center,
2011); and E.L. Sevigny, B.K. Fuleihan, and F.V. Ferdik, “Do drug courts
reduce the use of incarceration?: A meta-analysis,” Journal of Criminal
Justice, 41, no.6 (2013): 416-425. For research that demonstrates that
community-based sanctions are more effective than incarceration for
certain types of offenders more generally, see for example, Christopher
T. Lowenkamp and Edward J. Latessa, “Understanding the Risk Principle:
How and Why Correctional Interventions Harm Low-Risk Offenders,”
Topics in Community Corrections (Washington, DC: National Institute of
Corrections, 2004).
11 For 1983 admissions, see Craig A. Perkins, James J. Stephan, and Allen
J. Beck, Jails and Jail Inmates 1993-94, (Washington, DC: US Department
of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1995),
13. For 2013 admissions, see Minton and Golinelli, 2014, p.4.
12 David E. Olson and Koert Huddle, “An Examination of Admissions,
Discharges & the Population of the Cook County Jail, 2012”, Social
Justice, Paper 16 (2013), http://ecommons.luc.edu/social_justice/16/
13 Mayor’s Task Force on Behavioral Health and the Criminal Justice System,
Action Plan (City of New York: Mayor Bill de Blasio, 2014), 6, http://nyc.
gov/BHTF.
14 For 1983 jail population, see Allen J. Beck, Profile of Jail Inmates 1989,
(Washington, DC: US Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, 1991), 3. For 2013 jail population, see Minton
and Golinelli, 2014, p.6.
15 For 1993 rate, see Perkins, Stephan, and Beck, 1995, p. 2. For 2007 rate,
see Minton and Golinelli, 2014, p.6.
16 Minton and Golinelli, 2014, p.6.
17 Uniform Crime Reporting Statistics - UCR Data Online,
http://www.ucrdatatool.gov/. The violent crime rate decreased from 758
to 387 and the property crime rate decreased from 5,140 to 2,859.
18 Pew Center on the States, State of Recidivism: The Revolving Door of
America’s Prisons (Washington, DC: Pew Charitable Trusts, 2011); Don
Stemen, Reconsidering Incarceration: New Directions for Reducing Crime
(New York, NY: Vera Institute of Justice, 2007). Also see J. Travis, B.
Western, and S. Redburn, eds. The Growth of Incarceration in the United
States: Exploring Causes and Consequence (Washington, DC: National
Research Council, 2014).
19 For drug arrest rates, see Howard N. Snyder and Joseph MulakoWangota, Arrest Data Analysis Tool, (Washington, DC: Bureau of Justice
Statistics, 2013), selecting Drug Abuse Violation—Total at www.bjs.gov,
(accessed Nov. 29, 2014). For 1983 and 1989 drug jailing rates, see Beck,
1991, p.11; for later drug jailing rates, see Doris J. James, Profile of Jail
Inmates, 2002 (Washington, DC: US Department of Justice, Office of
Justice Programs, Bureau of Justice Statistics, 2004).
20 Authors’ approximations based on data from Beck, 1991, p. 7; and
Minton and Golinelli, 2014, p. 6. To approximate length of stay (LOS)
from aggregate annual admissions (ADM) and average daily populations
(ADP), we used the formula LOS = ADP/(ADM/365). The numbers are
intended to illustrate the trend more than precise estimates.
21 The percentage is a weighted average for those with and without mental
illness who abused drugs or alcohol from Doris J. James and Lauren
Glaze, Mental Health Problems of Prison and Jail Inmates (Washington,
DC: US Department of Justice, Office of Justice Programs, Bureau of
Justice Statistics, 2006), 5-6.
22 Caroline Wolf Harlow, Education and Correctional Populations
(Washington, DC: US Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, 2003), 2.
and Bureau of the Census, “U.S. Census QuickFacts,”
http://quickfacts.census.gov/qfd/states/00000.html. Using racial
breakdowns of jail populations and U.S. Census figures from 2010, we
determined that African Americans are jailed at a rate of 751 per 100,000
and whites are jailed at a rate of 168 per 100,000.
24 Minton and Golinelli, 2014, p. 7; and Bureau of the Census, “U.S. Census
QuickFacts” at http://quickfacts.census.gov/qfd/states/00000.html.
25 Authors’ calculations based on New York City Independent Budget
Office, NYC’s Jail Population: Who’s There and Why? (New York: New
York City Independent Budget Office, 2012), http://ibo.nyc.ny.us/cgipark2/?p=516; and Bureau of the Census, “U.S. Census QuickFacts,”
http://quickfacts.census.gov/qfd/states/00000.html. The population of
the Rikers Island jail is 57 percent black, 33 percent Latino, and 7 percent
white. The population of New York City is 22 percent black, 29 percent
Latino, and 33 percent white.
26 J. Blecher, “Are jails replacing the mental health system for the homeless
mentally ill?,” Community Mental Health Journal 24, no. 3 (1988): 185-95;
D. Shenson, N. Dubler, and D. Michaels, “Jails and prisons: The new
asylums?,” American Journal of Public Health 80, no. 6 (1990): 655-694.
For history of the deinstitutionalization of the mentally ill generally,
see Bernard E. Harcourt, Reducing Mass Incarceration: Lessons from
the Deinstitutionalization of Mental Hospitals in the 1960s (Chicago:
University of Chicago Public Law & Legal Theory Working Paper No. 335,
2011). Also see Richard G. Frank and Sherry A. Glied, Better But Not
Well: Mental Health Policy in the United States since 1950 (Baltimore,
MD: The Johns Hopkins University Press, 2006).
27 Henry J. Steadman, F.C. Osher, et al., “Prevalence of Serious Mental Illness
Among Jail Inmates,” Psychiatric Services 60, no. 6, (June, 2009): 761;
and although women still make up a relatively small proportion of the jail
population—14 percent in 2013— their share has been steadily increasing,
up from 11 percent since 2000, Minton and Golinelli, 2014, p. 7.
28 James and Glaze, 2006, p. 1. Symptoms of a mental disorder were based
on criteria specified in the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV). For a general discussion of mental
illness in jails, see Travis, Western, and Redburn, 2014.
29 H. Richard Lamb and Linda Weinberger, “The Shift of Psychiatric
Inpatient Care From Hospitals to Jails and Prisons,” Journal of the
American Academy of Psychiatry and the Law Online 33, no. 4 (2005):
529, 531. Also see H. Richard Lamb, Linda Weinberger, and Walter
DeCuir, “The Police and Mental Health,” Psychiatric Services 53, Issue
10 (2002): 1266, 1269 at http://ps.psychiatryonline.org/doi/full/10.1176/
appi.ps.53.10.1266.
30 James and Glaze, 2006, p. 9.
31 David H. Cloud, Ernest Drucker, Angela Browne, and Jim Parsons, “Public
Health and Solitary Confinement in the United States,” American Journal
of Public Health.
32 Vera Institute of Justice, Los Angeles County Jail Overcrowding
Reduction Project (Los Angeles, CA: Vera Institute of Justice, 2011), xix.
33 For 1982 expenditures, see Tracey Kyckelhahn, Justice Expenditures
and Employment, FY 1982-2007 (Washington, DC: Department of
Justice, 2011), 6; for 2011 expenditures, see Tracey Kyckelhahn, Local
Government Corrections Expenditures, FY 2005–2011, (Washington, DC:
Department of Justice, Bureau of Justice Statistics, 2013), 1-4, 7. The
2011 report shows local expenditures on corrections as $7,068 million in
1982 (in 2007 dollars) and the 2013 report shows local expenditures on
corrections to be $26,400 million in 2011 (in 2011 dollars). When both
figures are adjusted to constant 2011 dollars, the increase is about 235
percent.
34 A. L. Solomon, Life after lockup: Improving reentry from jail to the
community (Washington, DC: Urban Institute, Justice Policy Center,
2008), 15-24.
23 Authors’ calculations based on Minton and Golinelli, 2014, p. 2;
202
VERA INSTITUTE OF JUSTICE
49
35 Kyckelhahn, 2013, p. 4.
36 State funds and other sources of revenue, including fines and fees, may
cover a small percentage of operating costs. Barbara Krauth and Karin
Stayton, Fees Paid by Jail Inmates: Fee Categories, Revenues, and
Management Perspectives in a Sample of U.S. Jails (Washington, DC: U.S.
Department of Justice, National Institute of Corrections, 2005), 2-4, 6-7,
15-17, 36-38, 40-41.
37 Christopher Lowenkamp, Marie VanNostrand, and Alexander M.
Holsinger, The Hidden Costs of Pretrial Detention (New York, NY: The
Laura and John Arnold Foundation, 2013), 11. Lowenkamp et al.’s
research in this area does not explore the causes of these negative
outcomes. One, as yet untested, hypothesis could be that detained
low- and moderate-risk individuals suffer the same over-programming
consequences as low- and moderate-risk probationers and parolees who
recidivate at higher rates when they receive overly-intensive supervision
as compared to those who receive supervision matched to their assessed
risk. For research on assessed risk and intervention level, see D.A.
Andrews and James Bonta, The psychology of criminal conduct (Albany,
NY: Lexis Nexis/Anderson Pub. Research, 2010) on the negative impact
of high-intensity supervision and interventions with low- and medium-low
risk probationers and parolees.
38 See Lowenkamp, VanNostrand, and Holsinger, 2013, p. 10-11; John
S. Goldkamp, Two Classes of Accused: A study of Bail and Detention
in American Justice (Cambridge, MA: Ballinger Pub. Co., 1979); and
Malcolm Feeley, The Process is the Punishment: Handling Cases in a
Lower Criminal Court, (New York: Russell Sage Foundation, 1979). For
a comprehensive review of current research, see Jeffrey David Manns,
Liberty Takings: a Framework for Com[p]ensating Pretrial Detainees
(Cambridge, MA: Harvard Law School, John M. Olin Center for Law,
Economics, and Business, 2005); and The Pretrial Justice Institute,
Rational and Transparent Bail Decision Making: Moving From a CashBased to a Risk-Based Process, (Washington, DC, Pretrial Justice
Institute/MacArthur Foundation 2012).
39 Goldkamp, 1979; Feeley, 1979; and Manns, 2005.
40 For racial breakdowns of jail populations, see Minton and Golinelli, 2014,
p. 6. For racial breakdowns of the general population, see U.S. Census
QuickFacts, http://quickfacts.census.gov/qfd/states/00000.html.
41 For the example of New York City, see Jeffrey Fagan and Garth Davies,
“Street Stops and Broken Windows: Terry, Race, and Disorder in New
York City,” Fordham Urban Law Journal 28, no.2 (2000): 457-464.
42 Marc Mauer and Nazgol Ghandnoosh, Incorporating Racial Equity into
Criminal Justice Reform (Washington, DC: The Sentencing Project, 2014),
6-7.
43 For research demonstrating that schools in minority neighborhoods are
more likely to have law enforcement officers on site, see Aaron Kupchik
and Geoff Ward “Race, Poverty, and Exclusionary School Security: An
Empirical Analysis of US Elementary, Middle, and High Schools,” Youth
Violence and Juvenile Justice 12, no. 4 (2013): 332-354; and Allison
Ann Payne and Kelly Welch, “Modeling the Effects of Racial Threat on
Punitive and Restorative School Discipline Practices,” Criminology 48, no.
4 (2010): 1019-1062.
44 For information about stop and frisk practices in New York, see Jennifer
Fratello, Andres Rengifo, and Jennifer Trone, Coming of Age in the Era of
Stop and Frisk (New York, NY: Vera Institute of Justice, 2013).
45 Mauer and Ghandnoosh, 2014, pp. 6-7.
46 Robert Brame, Shawn Bushway, Ray Paternoster, Michael Turner,
“Demographic Patterns of Cumulative Arrest Prevalence by Ages 18 and
23,”Crime and Delinquency, 60(3), (2014), 1.
48 American Civil Liberties Union, Racial Disparities in Sentencing: Hearing
on Reports of Racism in the Justice System of the United States.
(Washington, DC: American Civil Liberties Union, 2014), 1-3.
49 Barbara Krauth and Karin Stayton, pp. 7-35.
50 These fees include medical visits (including pharmacy prescriptions,
eye care, and dental), telephone use, per diem/pay to stay, booking,
photocopying, barber/hair care, bonding, escort/transportation, notary,
laundry, check-processing, detoxification at intake, substance abuse
testing, substance abuse treatment, weekend programs, electronic
monitoring, community service, GED testing, jail industries/jobs
programs, work release, vocational aptitude testing, and day reporting.
See Krauth and Stayton, 2005, pp. 7-35.
51 See American Civil Liberties Union, In for a Penny: The Rise of America’s
New Debtors Prisons (New York, NY: American Civil Liberties Union,
2010), 6-8; and Council on State Governments, Repaying Debts
(Washington, DC: Council of State Governments and the Bureau of
Justice Assistance, 2007), 7-8. Also see, A. Bannon, M. Nagrecha, and R.
Diller, Criminal Justice Debt: a Barrier to Reentry (New York, NY: Brennan
Center for Justice, 2010), 7-10.
52 Bannon, Nagrecha, and Diller, 2010, p.10.
53 Council on State Governments, Repaying Debts (Washington, DC:
Council of State Governments and the Bureau of Justice Assistance,
2007), 2.
54 In addition, more and more employers are conducting criminal
background checks as part of their hiring processes. Some surveys
suggest that 90 percent of employers conduct such checks, and they are
not always limited to convictions. NELP found that in one survey, over 90
percent of employers reported requiring criminal background checks as
a part of hiring decisions. They may also inquire about previous arrests
or criminal charges, regardless of the outcome. See Michelle Natividad
Rodriguez and Maurice Emsellem, 65 Million Need not Apply: The Case
for Reforming Criminal Background Checks for Employment (Washington,
DC: The National Employment Law Project, 2011), 1.
55 Bannon, Nagrecha, and Diller, 2010, p.13.
56 See American Civil Liberties Union, 2010, p. 5; Council on State
Governments, 2007 p. 3; Bannon, Nagrecha, and Diller, 2010, pp. 19-26;
Douglass Evans, The Debt Penalty—Exposing the Financial Barriers to
Offender Reintegration (New York, NY: Research and Evaluation Center,
John Jay College of Criminal Justice, City University of New York, 2014), 1.
57 Bearden v. Georgia, 461 U.S. 660, 668-69 (1983).
58 Bruce Western and Becky Pettit, Collateral Costs: Incarceration’s Effect on
Economic Mobility (Washington, DC: the Pew Charitable Trusts, 2010), 11.
59 When an individual enrolled in Medicaid is detained, the majority of
states terminate Medicaid benefits, despite federal guidance that
allows for the suspension of Medicaid for individuals involved in the
criminal justice system whose eligibility for the program is not linked
to Supplemental Security Income. See Anita Cardwell and Meaghan
Gilmore, County Jails and the Affordable Care Act: Enrolling Eligible
Individuals in Health Coverage (Washington, DC: National Association of
Counties, 2012), 3.
60 Each federal program has different eligibility criteria in relation to prison
or jail stays. See Social Security Administration, What Prisoners Need to
Know (Washington, DC: Social Security Administration, 2010),
http://www.ssa.gov/pubs/EN-05-10133.pdf;
U.S. Department of Veterans Affairs, “Incarcerated Veterans,”
http://www.benefits.va.gov/persona/veteran-incarcerated.asp .
47 Tina Frierburger and Carly Hilinski. “The Impact of Race, Gender, and
Age on the Pretrial Decision,” Criminal Justice Review 35(3), (2010), 330.
50
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
203
61 See Corrinne A. Carey, No second chance: People with criminal records
denied access to public housing (New York, NY: Human Rights Watch,
2004), 3, http://www.hrw.org/reports/2004/usa1104/usa1104.pdf; and
Stephen Metraux, Caterina Roman, and Richard Cho, “Incarceration and
Homelessness,” (Washington DC: National Symposium on Homelessness
Research, 2007), 9.
62 A survey found that 63 percent of homeless formerly incarcerated
people in Baltimore, MD surveyed had owned or rented a home prior to
incarceration, but only 29 percent owned or rented a home after release.
The survey does not distinguish between jail and prison, but notes that
41 percent of respondents were incarcerated for a year or less. See
Center for Poverty Solutions, Barriers to Stability: Homelessness and
Incarceration’s Revolving Door in Baltimore City (Baltimore, MD: Open
Society Foundations, 2003), 14-15.
63 See Greg A. Greenbergand and Richard Rosenheck, “Jail Incarceration,
Homelessness, and Mental Health: A National Study,” Psychiatric
Services 59, no. 2 (2008): 170-177; National Association of Counties,
Corporation for Supportive Housing, Supportive Housing for JusticeInvolved Frequent Users of County Public Systems (Washington, DC.:
National Association of Counties, 2013), 3.
64 More than half (53 percent) of female jail inmates reported having a
current medical problem, compared to about a third (35 percent) of male
jail inmates. See Laura M. Maruschak, Medical Problems of Jail Inmates,
(Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics,
2006), 1, http://www.bjs.gov/content/pub/pdf/mpji.pdf.
65 See Richard G Frank and Sherry A. Glied, Better But Not Well: Mental
Health Policy in the United States since 1950 (Baltimore, MD: Johns
Hopkins University Press, 2006); Kathleen N. Ly et al., “The increasing
burden of mortality from viral hepatitis in the United States between
1999 and 2007,” Annals of Internal Medicine 156, no. 4 (2012): 271-278;
Jessica R. MacNeil, Mark N. Lobato, and Marisa Moore, “An unanswered
health disparity: tuberculosis among correctional inmates, 1993 through
2003,” American Journal of Public Health 95 no. 10 (2005): 1800;
Marushka L. Silveira, 2006, p. 1.
66 Nicholas Freudenberg, “Jails, prisons, and the health of urban
populations: A review of the impact of the correctional system on
community health” Journal of Urban Health: Bulletin of the New York
Academy of Medicine 78, no. 2 (2011): 214–235.
67 Dora M. Dumont et al., “Public health and the epidemic of incarceration,”
Annual Review of Public Health 33 (2012): 331-333; Andrew P. Wilper et
al., “The health and health care of US prisoners: results of a nationwide
survey,” American Journal of Public Health 99, no. 4 (2009): 666-672; Sasha
Abramsky and Jamie Fellner, Ill-Equipped: US Prisons and Offenders with
Mental Illness (New York: Human Rights Watch, 2003), 16, 22, 40.
68 Nicholas Freudenberg, Jessie Daniels, Martha Crum, Tiffany Perkins,
and Beth E. Richie, “Coming Home From Jail: The Social and Health
Consequences of Community Reentry for Women, Male Adolescents, and
Their Families and Communities,” American Journal of Public Health. 95
(2005): 1725.
69 In 2005, 79 percent of women in jail were mothers, with nearly 250,000
children between them. See Susan McCampbell, The Gender-Responsive
Strategies Project: Jail Applications (Washington, DC: National Institute
of Corrections, US Department of Justice, 2005), 2, 4.
70 Steve Christian, Children of Incarcerated Parents (Washington, DC:
National Council of State Legislatures, 2009), 5.
71 Todd Clear’s research looks at the impact of incarceration on communities,
including high rates of community members in both jail and prison. Todd R.
Clear, “The Effects of High Imprisonment Rates on Communities,” Crime
and Justice 37, no. 1 (2008): 97-132, 114-117. Also see Andrew Petteruti
and Nastassia Walsh, Jailing Communities: The Impact of Jail Expansion
and Effective Public Safety Strategies (Washington DC: Justice Policy
Institute, 2008), 18-20; and Nancy G. La Vigne, Pamela Lachman, Shebani
Rao, Andrea Matthews. Stop and Frisk: Balancing Crime Control with
Community Relations (Washington, DC: Urban Institute, 2014): 20-21.
72 Todd R. Clear, Imprisoning communities: How mass incarceration makes
disadvantaged neighborhoods worse (Oxford: Oxford University Press,
2007).
73 James Austin and Michael Jacobson, How New York City Reduced Mass
Incarceration: A Model for Change? (New York, NY: Vera Institute of
Justice, 2013), 25.
74 State laws allow citation and release primarily in response to traffic
violations, infractions, low-level misdemeanors, and sometimes low-level
felonies. Louisiana, Oregon, and New York, for example, offer this for
some felonies. Both state laws and departmental policies range widely
in terms of presuming or allowing this practice. There are states and/or
municipalities, for example, that list specific crimes for which a citation
is the presumed response, absent mitigating circumstances, while
others provide no guidance at all. See National Conference of State
Legislatures, Citation in Lieu of Arrest (2013)
75 Ibid. With varying degrees of formality, officers consider an array of
factors, including whether the suspect seems to pose a danger to
persons or property and the person’s criminal record, including any
outstanding warrants; whether or not the suspect and any family
members reside locally and the suspect’s employment status and
other possible ties to the community as indicators of the likelihood
that the person will appear in court; and whether the suspect is under
the influence of drugs or alcohol or appears to be mentally ill. See for
example, Mary T. Phillips, The Past, Present , and Possible Future of Desk
Appearance Tickets in New York City, (New York: New York City Criminal
Justice Agency, 2014). In some small jurisdictions, the police may also
require the person to post a small amount of bail to create an incentive
for the person to appear in court for arraignment.
76 The practice of “for-profit” or “quota” policing can result in unlawful
stops, summonses, and arrests. Quotas are requirements that an officer
issue a certain number of violations within a specific timeframe and are
sometimes imposed to accrue court fines and fees from defendants to
help reduce budgetary deficits in cities or counties. See for example,
New York Civil Liberties Union report “NYCLU Lawsuit Challenges
Primitive Quota System in Bronx Precinct” (New York, NY: New York
Civil Liberties Union, 2012), http://www.nyclu.org/news/nyclu-lawsuitchallenges-punitive-quota-system-bronx-precinct. While it still remains
a practice in some jurisdictions, there has been much investigation and
litigation in jurisdictions across the United States, including in Georgia,
New Jersey, Illinois, and New York, regarding the illegality of violations
and ticket quotas. See for example, Fraternal Order of Police, Lodge
1 v City of Camden, Civ. No 10-1502 (D.N.J. Sep. 26, 2013); Plaintiff’s
Complaint, Craig Matthews v City of New York, Raymond Kelly, 12
Civ.1354 (S.D.N.Y. filed Feb. 23, 2012).
77 For research on civil forfeiture, see Marian R. Williams, Jefferson E. Holcomb,
Tomislav V. Kovandzic, and Scott Bullock, Policing for Profit: The Abuse of
Civil Asset Forfeiture (Washington, DC: Institute for Justice, March 2010)
http://www.ij.org/policing-for-profit-the-abuse-of-civil-asset-forfeiture-4;
J. Worrall, and T. Kovandzic, “Is Policing For Profit? Answers from Asset
Forfeiture” Criminology and Public Policy 7 (2008): 219-244; and John L.
Worrall, “Addicted to the Drug War: The Role of Civil Asset Forfeiture
as Budgetary Necessity in Contemporary Law Enforcement” Journal of
Criminal Justice 29 (2001): 171–187. For an example of press coverage
about Missouri, see Radley Balko, “How Municipalities in St. Louis County,
MO., Profit From Poverty,” Washington Post, September 3, 2014.
78 Authors’ calculation from Bureau of Justice Statistics, Jail Inmates 1984
(Washington, DC: US Department of Justice, Bureau of Justice Statistics,
1986), 2; and Snyder and Mulako-Wangota, 2013. In 1983 there were
11.7 million arrests and 6 million jail admissions.
79 Authors’ calculation from Minton and Golinelli, 2014, p. 4; and Snyder
and Mulako-Wangota, 2013. In 2012 there were 12.2 million arrests and
11.6 million jail admissions.
80 For the analysis of 17 state courts, see Robert LaFountain et al.,
Examining the Work of State Courts: An Analysis of 2010 State Court
Caseloads (Washington DC: National Center for State Courts, 2012),
24. For the analysis of misdemeanor arrests in New York City, see Preeti
204
VERA INSTITUTE OF JUSTICE
51
Chauhan et al., Trends in Misdemeanor Arrests in New York (New York:
John Jay College of Criminal Justice, 2014).
81 The arrest rate for drug crimes peaked in 2006. See Howard N. Snyder
and Joseph Mulako-Wangota, Bureau of Justice Statistics. With
underlying data from the FBI’s Uniform Crime Reporting (UCR) Program,
U.S. drug arrest estimates were generated using the Arrest Data Analysis
Tool at http://www.bjs.gov.
82 The U.S. Constitution affords defendants adversarial safeguards in
criminal proceedings including a timely judicial determination of probable
cause as a pre-requisite to detention under the Fourth Amendment.
See Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Similarly, under the
Sixth Amendment the Court found that there must be a reasonable
time between arrest and arraignment. See Barker v. Wingo, 407 U.S.
514, 530-31 (1972). These holdings have been codified under Federal
Rule of Criminal Procedure 5.1, which states that a person arrested in
the United States must be presented “without unnecessary delay” to
a magistrate or judge. See Fed. Rules Cr. Proc. Rule 5, 18 U.S.C.A.,
FRCRP Rule 5. The Supreme Court subsequently found that in order to
satisfy Gerstein’s promptness requirement, a jurisdiction that chooses to
combine probable cause determinations with other pretrial proceedings
must do so as soon as is reasonably feasible, but no later than 48 hours
after arrest. See County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991). States that combine “probable cause determinations” with initial
court appearances have interpreted “unnecessary delay” to mean no
more than 48 hours. See Pen C §825; CCP §§134-135; Govt C §§6700,
6706; People v Lee 3 CA3d 514, 521 (1970). Despite the Supreme
Court’s 48 hour mandate, many jurisdictions provide a 72-hour window
for arraignment. Typically state statutes do not permit law enforcement
to detain a person for more than 72 hours before arraignment and others
comport with the Supreme Court mandate of 48 hours and some even
fewer. For example, in New York and Washington, DC, statute requires
24 hours and in California legislature interprets “unnecessary delay” as
no more than 48 hours, not including holidays. See Kimyetta R. Robinson,
From Arrest to Appeal: A Guide to Criminal Cases in The New York State
Courts (New York, NY: The Fund for Modern Courts, 2005), 12; also see
Washington, DC Super. Ct. R. Crim. P. 5(c).—a defendant has the right to
an immediate probable cause determination; Pen C §825; CCP §§134135; Govt C §§6700, 6706. People v Lee 3 CA3d 51 (1970). However,
while courts have found that unreasonable pre-arraignment detention is
unconstitutional, there is no remedy for the violation.
83See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), “In our system,
so long as prosecutor has probable cause to believe that the accused
committed offense defined by statute, decision whether to prosecute,
and what charge to file or bring before a grand jury, and generally
rests entirely in his discretion.” However, “a prosecutor should remain
free before trial to exercise the broad discretion entrusted to him
to determine the extent of the societal interest in prosecution.” See
U.S. v. Goodwin, 457 U.S. 368 (1982). Also see, for example, Hassan
v Magistrates Court, 191 N.Y.S. 2nd 238, 243 (Sup. Ct. 1959), “Just
because a crime has been committed, it does not follow that there
must necessarily be a prosecution for it lies with the district attorney to
determine whether the acts which may fall within the literal letter of the
law should as a matter of public policy not be prosecuted.” Additionally,
recognizing the prosecution’s broad enforcement and discretionary
power, the American Bar Association created a rule in its Model Rules
for Professional Responsibility to guide prosecutors’ duties. See Model
Rules of Professional Conduct Rule 3.8 (2005).
84 For examples of recent state reforms that expand deferred prosecution
programs out of concern about collateral consequences of criminal
convictions see Ram Subramanian and Rebecka Moreno, Relief in Sight?
States Rethink the Collateral Consequences of Criminal Conviction, 20092014 (New York, NY: Vera Institute of Justice, 2014).
85 For information on the history of risk assessment in criminal justice, see
D.A. Andrews, James Bonta, and J. Stephen Wormith, “The Recent Past
and Near Future of Risk and/or Need Assessment,” Crime & Delinquency
52, no. 1 (2006): 7-27.
52
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
86 National Association of Pretrial Services Agencies, Promising Practices
in Pretrial Diversion (Washington, DC: National Association of Pretrial
Services Agencies, 2010).
87 Broadly, bail refers to conditions put upon an accused person to
ensure that, if released from custody, he or she reappears for trial. See
Stack v. Boyle, 342 U.S. 1, 4 (1951) (“The right to release before trial is
conditioned upon the accused’s giving adequate assurance that he will
stand trial and submit to sentence if found guilty.”) While the Eighth
Amendment prohibits excessive bail, the Constitution does not create
an absolute right to bail. See United States v. Salerno, 481 U.S. 739,
754-55 (1987). Presently, there is a presumption towards releasing people
pending trial. However, if an individual is deemed to pose a safety risk
or flight risk, then pretrial detention is allowed. See Salerno, 418 U.S. at
751 (Government’s interest in public safety can outweigh an individual’s
liberty interest.) The decision whether or not to release a defendant is
usually made first at arraignment or another initial court appearance, and
can be revisited multiple times during the movement of a case through
the courts.
88 For example, under Federal bail law, see 18 U.S.C. § 3142, as amended
in 1984, courts can deal with an individual charged with a crime pending
trial in several ways. If a judicial officer can determine that the individual
doesn’t pose a safety or flight risk, the individual should be released
upon his or her own recognizance, or after promising to pay money for
failure to appear: see § 3142(b). Second, if the judicial officer feels more
safeguards are necessary to ensure either the individual’s reappearance
or to ensure the safety of the community, the court can impose further
conditions (for example, compliance with a curfew, electronic monitoring,
or prohibitions on firearm possession): see § 3142(c). Determinations for
either outcome are made by considering the nature of the offense, the
weight of evidence against the individual, the history and character of
the individual, and whether the individual poses a significant risk to the
community: see § 3142(g). Alternatively, an individual may be temporarily
detained in order to facilitate the revocation of any other conditional
release he or she may be under—for example, if the individual is on
probation, parole, or awaiting trial for another offense: see § 3142(d).
However, temporary detainment is only triggered if an individual poses a
flight or safety risk: see § 3142(d)(2). Finally, only some individuals can be
detained until trial. Those charged with crimes of violence, certain drug
offenses, certain repeat offenses, and offenses carrying maximum life
sentences trigger the ability for the court to hold a hearing to determine
whether indefinite detention is warranted: see § 3142(f). Additionally,
individuals whose pose a significant flight risk or are likely to obstruct
justice or threaten witnesses are also eligible for indefinite detention.
Ibid. Typically, at the hearing, the government must show, by clear and
convincing evidence, that no conditions of release can reasonably assure
the safety of the community. However, certain charges—including certain
drug offenses, certain acts of terrorism, and many offenses involving a
minor victim—carry a presumption of detention that the defendant must
rebut: see § 3142(e). At the state level, bail laws vary. For an overview of
differences among state bail laws, see Pretrial Justice Institute’s “Matrix
of Bail Laws,” http://www.pretrial.org/wpfb-file/matrix-of-state-bail-lawsapril-2010-pdf/.
89 Minton and Golinelli, 2014, p.1.
90 Pheny Z. Smith, Felony Defendants in Large Urban Counties, 1990
(Washington, DC: Bureau of Justice Statistics, Department of Justice,
1993), 8; and Brian A. Reaves, Felony Defendants in Large Urban
Counties, 2009-Statistical Tables (Washington, DC: Bureau of Justice
Statistics, Department of Justice, 2013), 1.
91 Reaves, 2013, p.15.
92Ibid.
93 Ibid. A surety bond is an agreement between the court and a third
person (the surety) to pay a certain amount if the defendant named in the
agreement fails to appear in court. The bond may be secured, requiring
an actual payment of the sum or some portion of it in court pending the
appearance of the defendant, or unsecured, requiring only the promise
to pay if the defendant doesn’t appear. Private surety agents, known as
bail bondsmen, charge a nonrefundable fee in exchange for paying or
205
promising to pay the amount necessary to get someone out of jail. They
may also require some kind of collateral from the defendant that will be
forfeited if he or she fails to show up for court dates. Some states, most
recently Kentucky, have outlawed private for-profit sureties.
94 Reaves, 2013, p. 19; Brian A. Reaves and Paul Smith, Felony Defendants
in Large Urban Counties, 1992 (Washington, DC: Bureau of Justice
Statistics, Department of Justice, 1995), 20. The 1992 mean bail ($25,400)
is shown in 2009 dollars.
95 See Marion Katsive, New Areas for Bail Reform: A Report on the
Manhattan Bail Reevaluation Project (New York, NY: Vera Institute of
Justice, 1968). See generally Kristin Bechtel, Christopher T. Lowenkamp
and Alex Holsinger, “Identifying the Predictors of Pretrial Failure: A
Meta-Analysis” Federal Probation 75, no. 2 (2011).
96 Bechtel, Lowenkamp, and Holsinger, 2011, pp.1-2.
97 Melissa Neal, Bail Fail: Why the U.S. Should End the Practice of Using
Money for Bail (Washington, DC: Justice Policy Institute, 2012), 3-4, 21-22.
98 Reaves, 2013, pp. 15, 20.
99 Donna Makowiecki and Thomas Wolf, “Enter...Stage Left...U.S. Pretrial
Services,” Federal Probation 71, no. 2: 7-9; also see William Henry, “The
Pretrial Services Act: 25 Years Later,” Federal Probation 71, no. 2 (2007): 16.
100 Bechtel, Lowenkamp and Holsinger, 2011.
101 For example, see the Los Angeles County 2011 Felony Bail Schedule,
http://www.metalaw.us/resource/Bail%20Schedule_Infractions_
Misdemeanors.pdf; and see Pretrial Justice Institute, Rational and
Transparent Bail Decisions: Moving from a Cash-based to a Risk-based
Process (Washington, DC: Pretrial Justice Institute, 2012) 18-42; Michael
R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial
Option (Washington, DC: Pretrial Justice Institute, 2013).
102 Timothy Schnacke, Money as a Criminal Justice Stakeholder: The Judge’s
Decision to Release or Detain a Defendant Pretrial (Washington, DC:
National Institute of Corrections, U.S. Department of Justice, 2014) 30-39.
103 Reaves, 2013, p. 15.
104Ibid.
105 13,352 felony defendants (including remands) and 10,868 non-felony
defendants were not released prior to disposition. 3,407 non-felony
defendants with bonds of $500 or less were not released prior to
disposition. See New York Criminal Justice Agency, New York Criminal
Justice Agency Annual Report (New York: Criminal Justice Agency,
2013), 30.
106 Frierburger and Hilinski, 2010, p. 330.
107Ibid.
108 Jamie Fellner, The Price of Freedom: Bail and Pretrial Detention of Low
Income Nonfelony Defendants in New York City (New York, NY: Human
Rights Watch, 2010), 27-30.
109 Vera Institute of Justice, Los Angeles County Jail Overcrowding
Reduction Project, 68.
110Ibid.
111 The Sixth Amendment of the U.S. Constitution provides that in
“all criminal prosecutions, the accused shall enjoy the right to a
speedy trial.” This same protection is also embodied in the Fourteen
Amendment’s due process clause. In 1974, the Speedy Trial Act 18
U.S.C. §§ 3161-3174— later amended in 1979— set forth time limits for
completing federal prosecutions providing for dismissal of the criminal
action if there are delays without good cause. Each state has its own
speedy trial provision, embodied in legislation, court rulings, or both.
112 A recent New Yorker essay tells the story of one young man who
spent three years in jail, missing both his junior and senior years in
high school and insisting on his innocence, before the Bronx district
attorney dismissed the charges against him. See Jennifer Gonnerman,
“Before the Law: A boy was accused of taking a backpack. The courts
took the next three years of his life,” The New Yorker, October 6, 2014.
According to a New York Times investigation, he is just one of many
defendants whose cases are stalled in the Bronx courts. See William
Glaberson, “Faltering Courts Mired in Delays,” The New York Times,
April 13, 2013, http://www.nytimes.com/2013/04/14/nyregion/justicedenied-bronx-court-system-mired-in-delays.html. Also see William
Glabeerson’s four-part report, “Justice Denied: Inside the Bronx’s
Dysfunctional Court System,” The New York Times, April 13, 14, 15 and
30, 2013.
113 Marie VanNostrand, New Jersey Jail Population Analysis: Identifying
Opportunities to Safely and Responsibly Reduce Jail Population
(Trenton, NJ: Drug Policy Alliance, 2013), 14.
114 See note 80. Also, see Jenny Roberts, “Crashing the Misdemeanor
System,” Washington and Lee Law Review 70 (2013) and Jenny Roberts,
“Why Misdemeanors Matter: Defining Effective Advocacy in Lower
Criminal Courts,” U.C. Davis Law Review 45 (2011).
115 The Bronx Defenders Fundamental Fairness Project, No Day in Court:
Marijuana Possession Cases and the Failure of the Bronx Criminal
Courts (Bronx, NY: The Bronx Defenders, 2013).
116 After arraignment, for example, a criminal case will typically include a
preliminary meeting between the two sides to see whether the case can
be resolved short of having a trial. For felonies, in some jurisdictions a
grand jury will be convened to examine the evidence and determine
whether charges should be brought. There will also likely be pretrial
hearings, some which will deal with procedural or constitutional issues
related to the evidence procured by law enforcement and depending
on the outcome, a judge may decide to alter course. The judge may
require more information, another hearing, may bind the case over
on different charges, or reduce or dismiss the charges. If convicted,
there is usually a gap in time between conviction and sentencing, in
part because the sentencing judge may require a report about the
defendant to inform the sentencing decision—a report that is typically
put together by the court’s probation department Sometimes the victim
and character witnesses might be called to the judge in determining an
appropriate sentence.
117 Vera Institute of Justice, Los Angeles County Jail Overcrowding
Reduction Project (2011), 71.
118 See note 121. Also, ibid, p. 70.
119 See William Glaberson for example, “For 3 Years After Killing, Evidence
Fades as a Suspect Sits in Jail,” The New York Times April 15, 2013
http://www.nytimes.com/2013/04/14/nyregion/justice-denied-bronxcourt-system-mired-in-delays.html.
120 More than 97 percent of federal convictions and 94 percent of state
convictions are the result of guilty pleas. See Bureau of Justice
Statistics, Sourcebook of Criminal Justice Statistics Online, Table
5.22.2010, http://www.albany.edu/sourcebook/pdf/t5222010.pdf;
and S. Rosenmerkel, M. Durose, and D. Farole, Felony Sentences
in State Courts, 2006–Statistical Tables (Washington, DC: Bureau
of Justice Statistics, 2009), 1; also see Lindsey Devers, Plea and
Charge Bargaining: Research Summary (Washington, DC: Bureau of
Justice Assistance, 2011), 1. For a brief discussion on the relative
power prosecutors have in plea bargaining see Rodney J. Uphoff,
“The Criminal Defense Lawyer As Effective Negotiator: A Systemic
Approach” Clinical Law Review 2 (1995): 73, 88-89 & n. 63 (1992).
121 See for example People v. Llovet, N.Y.LJ., Apr. 24, 1998 (Kings
Cty. Crim. Ct.) which found that “many of the pleas of guilty to
misdemeanors were by defendants who could achieve their freedom
only by pleading guilty. (Plead guilty and get out, maintain your
innocence and remain incarcerated in lieu of bail.) Thus if all defendants
had the economic wherewithal to make bail, it is clear that many
206
VERA INSTITUTE OF JUSTICE
53
fewer…would plead guilty to misdemeanors.” Also see Gerard E.
Lynch, “Our Administrative System of Criminal Justice,” Fordham Law
Review 66 (1998): 2117, 2146 (“Pleading guilty at the first opportunity in
exchange for a sentence of ‘time [already] served’ is often an offer that
cannot be refused.”)
122 James J. Stephan and Louis W. Jankowski, Jail Inmates, 1990,
(Washington, DC: US Department of Justice, Office of Justice Programs,
Bureau of Justice Statistics, 1991), 2.
131 American Civil Liberties Union, 2010, p. 73; and Bannon, Nagrecha, and
Diller, 2010, p. 11. See also Alexes Harris, Heather Evans, and Katherine
Beckett, “Drawing blood from stones: Legal debt and social inequality
in the contemporary United States,” American Journal of Sociology, 115
no. 6 (2014): 1782-1785; and Douglas Evans, Douglas, The Debt Penalty
— Exposing the Financial Barriers to Offender Reintegration (New York,
NY: Research & Evaluation Center, John Jay College of Criminal Justice,
City University of New York, 2014), 8-9.
123 Minton and Golinelli, 2014, p.7.
132 American Civil Liberties Union, 2010, p. 22. Bannon, Nagrecha, and
Diller, 2010, p. 24.
124 See Subramanian and Moreno, 2014, p. 11.
133 Ibid, p. 23.
125 For a discussion of treatment matching and dosage strategies that
incorporate criminogenic risk and needs assessments, see April
Pattavina and Faye S. Taxman, Simulation strategies to reduce
recidivism: Risk need responsivity (RNR) modeling for the criminal
justice system (New York, NY: Springer, 2013).
126 These strategies have not been without criticism. Advocates for healthbased approaches to addiction argue that drug courts have made the
criminal justice system more punitive toward addiction by penalizing
relapse with incarceration and dropping from programs those who
are not able to abstain from drug use for a sufficient period of time
as determined by a judge. See Drug Policy Alliance, Drug Courts Are
Not the Answer: Toward a Health-Center Approach to Drug Use (New
York, NY: Drug Policy Alliance, 2011), 16. Critics have also pointed
to a phenomenon known as ‘net widening,’ which refers to “wellmeaning police officers and prosecutors arrest[ing] and charg[ing]
more offenders under the assumption that something worthwhile could
happen to such offenders once they were in the penal system and
eligible for drug court rehabilitation,” Joel Gross, “The Effects of NetWidening on Minority and Indigent Drug Offenders: A Critique of Drug
Courts,” University of Maryland Law Journal of Race, Religion, Gender
and Class 10 (2010): 161, 167. They note that many of those individuals
are low-level offenders—often with no criminal record and no record
of addiction—who might have otherwise not been brought into the
system. See Eric Miller, “Drug Courts and Judicial Interventionism,”Ohio
State Law Journal 65 (2004): 1483, 1569. Mental health advocates have
put forth similar arguments regarding mental health courts. See, e.g.,
Susan Stefan & Bruce J. Winick, “A Dialogue on Mental Health Courts,”
Psychology, Public Policy & Law 11 (2005): 507.
127 Christopher T. Lowenkamp and Edward J. Latessa, “Understanding the
Risk Principle: How and Why Correctional Interventions Can Harm LowRisk Offenders,” Topics in Community Corrections, Annual Issue (2004).
128 See Peggy McGarry et al., The Potential of Community Corrections to
Improve Safety and Reduce Incarceration (New York, NY: Vera Institute
of Justice, Center on Sentencing and Corrections, July 2013), 12. See
also, Lowenkamp and Latessa, 2004.
129 McGarry et al., 2013, pp. 15-19.
130 For information about jail reentry challenges, see Talia Sandwick et al.,
Making The Transition: Rethinking Jail Reentry in Los Angeles County
(New York, NY: Vera Institute of Justice, 2013); Amy L. Solomon et
al., Life After Lockup: Improving Reentry from Jail to the Community
(Washington, DC: Urban Institute Justice Policy Center, 2008); Jim
Parsons, “Addressing the Unique Challenges of Jail Reentry” in
Offender Reentry: Rethinking Criminology and Criminal Justice, edited
by Matthew S. Crow and John Ortiz Smykla (Burlington, MA: Jones &
Bartlett Learning, 2014).
54
INCARCERATION’S FRONT DOOR: THE MISUSE OF JAILS IN AMERICA
207
Acknowledgments
The authors would like to thank Jennifer Trone for her deft assistance in the
writing of this report. A special thank you to Sean Addie, Vedan Anthony-North,
Christina Dominguez, Sophie Gebreselassie, Christine Herrman, Kaitlin Kall,
Maia Spotts, and Elizabeth Swavola for their research and other support.
We would especially like to thank Patricia Connelly for her invaluable
assistance in the planning and editing of this report; Carl Ferrero for creating
the charts, graphs, and infographics; and Mary Crowley and Daniel Wilhelm for
their insight and guidance throughout the project.
We would like to thank Laurie Garduque, Patrick Griffin, and Soledad McGrath
of the MacArthur Foundation for their support throughout the development of
this report.
This report was created with support from the John D. and Catherine T.
MacArthur Foundation as part of its Safety and Justice Challenge initiative, which
seeks to address over-incarceration by changing the way America thinks about
and uses jails. Core to the Challenge is a competition designed to support efforts
to improve local criminal justice systems in jurisdictions across the country that
are working to safely reduce over-reliance on jails, with a particular focus on
addressing disproportionate impact on low-income individuals and communities
of color. More information is available at www.SafetyandJusticeChallenge.org.
© Vera Institute of Justice 2015. All rights reserved. An electronic version of this report is posted on Vera’s website
at www.vera.org/incarcerations-front-door.
Cover photograph © Ed Kashi/VII
The Vera Institute of Justice is an independent nonprofit organization that combines expertise in research, demonstration projects,
and technical assistance to help leaders in government and civil society improve the systems people rely on for justice and safety.
For more information, visit www.vera.org.
For more information about this report, contact Ram Subramanian, director of publications, Center on Sentencing and Corrections,
at [email protected].
208
Suggested Citation
Ram Subramanian et al. Incarceration’s Front Door: The Misuse of Jail in America.
New York, NY: Vera Institute of Justice, 2015.
Vera Institute of Justice
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209
United States Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Human Rights
"Reassessing Solitary Confinement II: The Human Rights, Fiscal,
and Public Safety Consequences"
Written Testimony of Nicholas Turner
President and Director
Vera Institute of Justice
233 Broadway, 12th Floor
New York, NY 10279
February 25, 2014
Thank you, Chairman Durbin, Ranking Member Cruz, and members of the Subcommittee, for
the opportunity to submit written testimony for this hearing on the human rights, fiscal, and
public safety consequences of segregation (also known as solitary confinement or restricted
housing) in prisons, jails, and detention centers throughout the United States.
The Vera Institute of Justice is an independent, nonpartisan, nonprofit center for justice policy
and practice, with offices in New York City, Washington, D.C., Los Angeles, and New Orleans.
Since 1961, Vera has combined expertise in research, technical assistance, and demonstration
projects to help develop justice systems that are fairer, more humane, and more effective for
everyone. Vera’s Center on Sentencing and Corrections (CSC) works with government leaders to
advance criminal justice policies that promote fairness, protect public safety, and ensure that
resources are used efficiently. The center employs the skills and expertise of its staff, as well as
the practical knowledge of working criminal justice professionals. Housed within the CSC and
drawing on the expertise of both policy and research staff, Vera’s Segregation Reduction Project
(SRP) partners with states to safely decrease the number of people held in segregation (also
called solitary confinement), provides recommendations tailored to the states’ specific
circumstances and needs, and offers assistance as states plan and implement changes. The SRP
is the only project of its kind in North America and the first to do comprehensive assessments
and data analyses focused on all types of segregation. In addition to its work with U.S. states, it
is a member of the Advisory Group to advise the Center for Naval Analyses Institute for Public
Research assessment team’s review of the use of restricted housing by the Federal Bureau of
Prisons.
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
1
210
A.
Background on Use of Solitary Confinement/Segregation in U.S. Prisons
Since the 1980s, prisons in the United States have increasingly relied on segregation to manage
difficult populations. In the most recent numbers available, the U.S. Department of Justice’s
Bureau of Justice Statistics (BJS) reported in 2008 that the number of people in restricted
housing units nationwide increased from 57,591 in 1995 to 81,622 in 2005.1 Segregation was
developed as a method for handling highly dangerous prisoners. However, it has increasingly
been used with prisoners who do not pose a threat to staff or other prisoners but are placed in
segregation for minor violations that are disruptive but not violent, such as talking back
(insolence), being out of place, failure to report to work or school, or refusing to change housing
units or cells. In some jurisdictions, these prisoners constitute a significant proportion of the
population in this form of housing. For example, before collaborating with Vera, the majority
(60.5 percent) of prisoners in one state released from segregation during a one-year period had
been sentenced to segregation for these types of minor violations.
Evidence now suggests that holding people in isolation with minimal human contact for days,
years, or—in some instances—decades is counterproductive in many cases, as well as
exceptionally expensive. Long-term isolation can create or exacerbate serious mental health
problems and assaultive or anti-social behavior,2 result in negative outcomes for institutional
safety, and increase the risk of recidivism after release.3
In the United States, segregation or solitary confinement is used most commonly: (1) to punish
prisoners for rule violations (disciplinary/punitive segregation); (2) to remove prisoners from the
general prison population who are thought to pose a risk to security or safety (administrative
segregation); and (3) to protect prisoners believed to be at risk in the general prison population;
this might be for reasons of retaliation, gang affiliation, or sexual vulnerability (protective
custody). Other reasons include ensuring the safety of prisoners under investigation, awaiting
hearings, and addressing special needs such as mental health or developmental delay.4 Most
1
James J. Stephan, Census of State and Federal Correctional Facilities (Washington, DC: U.S. Bureau of Justice
Statistics, National Prisoner Statistics Program, 2008, NCJ 222182). BJS requests information on individuals being
held in “restricted housing units,” but does not provide definitions for restricted housing units or for different types
of segregation for respondents. As a result, the “restricted housing” category may include prisoners held in
protective custody and death row units, as well as special needs and mental health units. For this and other reasons,
BJS statistics may not accurately capture the numbers of prisoners in segregated settings. The BJS census includes
both state and federal prisons, but excludes military facilities, local detention facilities, Immigration and Customs
Enforcement facilities, and facilities that only house juveniles.
2
Venter, H. et.al., “Solitary Confinement and Risk of Self-Harm Among Jail Inmates,” American Journal of Pub.
Health, Vol. 104, No. 3, pp. 442-447 (March 2014).
3
David Lovell, “Patterns of Disturbed Behavior in a Supermax Population,” Criminal Justice and Behavior 35
(2008): 9852; David Lovell, L. Clark Johnson, and Kevin C. Cain, “Recidivism of Supermax Prisoners in
Washington State,” Crime and Delinquency 53 (2007): 633-656; and David Lovell and Clark Johnson, “Felony and
Violent Recidivism Among Supermax Inmates in Washington State: A Pilot Study” (University of Washington,
2004).
4
In greater detail, these uses of Segregation can be described as follows: 1) Disciplinary/punitive segregation is a
form of punishment for violations of prison rules. For example, a prisoner may be sentenced to a year in segregation
for assault or possession of contraband, or for a period of months for violation of a direct order; 2) Administrative
segregation removes prisoners from the general prison population who are thought to pose a threat to safety or
security or who are believed to have information about an incident under investigation. For example, a gang leader
believed to be coordinating gang activities within the prison may be placed in administrative segregation even if that
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
2
211
jurisdictions have guidelines limiting or defining the time a person is sentenced to
disciplinary/punitive segregation for specific violations. Administrative segregation is not
considered a punishment; the length of time in administrative segregation is typically open-ended
with periodic reviews.
Prison officials often fear that moving prisoners out of segregation will lead to violence and
other serious violations. Two states—Ohio and Mississippi—led the way in testing those
concerns. In the mid-2000s, Ohio and Mississippi reduced their supermax populations by 89
and 85 percent, respectively. Mississippi went from 1,000 to 150 prisoners in segregation; Ohio
went from 800 to 90 prisoners.5 Mississippi not only reduced the number of people held in
segregation but also saw an almost 70 percent decrease in prisoner-on-prisoner and prisoner-onstaff violence, and use of force by officers in the unit plummeted.6 Following the lead of Ohio
and Mississippi, other U.S. states (including Illinois, Maine, New Mexico, and Washington) have
reduced their use of segregation and enhanced the use of alternative strategies.
Due in part to this subcommittee’s initial hearing in June of 2012, focus on this issue has
increased in recent years. At its January 2013 conference, the American Correctional Association
devoted a plenary session to the topic of administrative segregation. A follow-up session, entitled
“Segregation: Controversial and Complicated,” was held seven months later, and included a call
to action for corrections professionals to look at segregation and examine its uses, benefits and
effects on the incarcerated. Also in January, the Association of State Correctional Administrators
held a special session on administrative segregation at its winter business meeting, and in
September adopted a resolution outlining recommendations for policies regarding restrictedstatus housing.
Much attention has been drawn to this issue by dedicated advocates, litigators, and the media.
ProPublica profiled the use of segregation for the mentally ill,7 and The Atlantic reported on the
conditions at ADX-Florence that prompted a class-action lawsuit against the federal Bureau of
individual has not violated any rules. Administrative segregation usually lasts for an indeterminate period of time
and, for those considered a threat to safety and security, may be of long duration. In some systems, prisoners are not
told the reason for their transfer to administrative segregation, and options for reevaluation or release back to the
general prison population may be few; 3) Protective custody provides safety for prisoners believed to be at risk in
the general prison population, such as a prisoner who provides information to correctional staff about violations
committed by others, or someone considered at risk due to physical characteristics or other individual factors.
Although segregated for their own protection, restrictions on human contact and programming for prisoners in
protective custody can be as severe as for prisoners in disciplinary or administrative segregation; 4) Temporary
confinement uses segregation while a reported incident is being investigated; it usually lasts for a short period and
begins immediately after a rule violation is identified but before a hearing is conducted; and 5) Supermax (or closed
maximum-security) prisons may hold both administrative and disciplinary segregation prisoners. All prisoners in
supermax facilities are held in high levels of confinement, typically for long periods of time. Architecturally,
supermax prisons are built to restrict visual and tactile contact with others. Educational and programmatic activities
are greatly restricted. 5
Terry Kupers et al., “Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison
Classification and Creating Alternative Mental Health Programs,” Criminal Justice and Behavior 36 (2009): 103750.
6
Ibid.
7
New York State Promised Help for Mentally Ill Inmates - But Still Sticks Many in Solitary, produced in
collaboration with WNYC, August 15, 2013, http://www.propublica.org/article/new-york-promised-help-formentally-ill-inmates-but-still-sticks-many-in-so (accessed February 24, 2014)
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
3
212
Prisons.8 In just the past week, following a federal lawsuit brought by the New York Civil
Liberties Union, New York State became the largest state to drastically curb the use of
segregation for the most vulnerable prisoners. Additionally, New York State Corrections
officials have agreed to develop new guidelines limiting the use of segregation except for the
most severe infractions.9 The New York Times Editorial Board applauded the move, noting that
segregation “is almost never effective at changing an inmate’s behavior for the better.”10
Colorado Department of Corrections Executive Director Rick Raemisch decided that he needed
to experience solitary confinement in order to understand it, and spent 20 hours in administrative
segregation. His experience engendered in him “even more urgency for reform,” noting that
failure to reduce the use of segregation will be both counterproductive and inhumane.11
B.
Tension between security concerns and human rights concerns
Corrections agencies with responsibility for the custody of prisoners must focus on the safety of
prisoners and staff and the need to maintain order. While understanding the need to prevent
chaos and violence in challenging group settings, human rights advocates––like many others––
are concerned with the extensive use of segregation and the severe penalties in the United States
compared to other countries, and the deficit of services and the abuses that occur in confinement
settings.12 At times, these competing interests have been settled by litigation or facilitated by
advocacy groups and public pressure. As correction agencies, legislators, and the general public
become more focused on extreme conditions and the availability of safe and humane alternatives,
the opportunity exists for radically reforming conditions of confinement in more constructive,
more effective, and less costly ways. Vera’s recommendations, which take into account the
importance of not jeopardizing the safety of corrections staff while improving outcomes in the
behavior of prisoners, are discussed in section H, below.
8
An American Gulag: Descending into Madness at Supermax, June 18, 2012,
http://www.theatlantic.com/national/archive/2012/06/an-american-gulag-descending-into-madness-atsupermax/258323/
9
N.Y. Becomes Largest Prison System to Curb Solitary Confinement, February 23, 2014,
http://www.npr.org/2014/02/23/281373188/n-y-becomes-largest-prison-system-to-curb-solitary-confinement,
(accessed on February 24, 2014.)
10
New York Rethinks Solitary Confinement, New York Times, 2/21/2014, p. A24,
http://www.nytimes.com/2014/02/21/opinion/new-york-rethinks-solitary-confinement.html, 2/24/2014 (accessed
February 24, 2014)
11
My Night in Solitary, New York Times, February 20, 2014, p. A25,
http://www.nytimes.com/2014/02/21/opinion/my-night-in-solitary.html; (accessed on February 24, 2014) For a
discussion of long term effects of segregation, see also - Solitary Confinement: 29 Years in a Box, February 23,
2014, http://www.cnn.com/2014/02/23/health/solitary-confinement-psychology/index.html. (accessed on February
24, 2014)
12
The Findings and Recommendations of the Commission on Safety and Abuse in America’s Prisons: Hearing
Before the Subcomm. on Corrections and Rehabilitation of the S. Comm. on the Judiciary, 109th Cong. (2006). Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
4
213
C.
Fiscal Impact of Prison Segregation
There are significant costs associated with the use of segregation in prisons. The majority of the
higher costs come from the need for additional staff to monitor segregation units and manage the
movement of the prisoners within them. For example, in the Ohio state system in the early
2000s, the supermax required one corrections officer for every 1.7 prisoners; maximum-security
housing required one officer for every 2.5 prisoners.13
Given the current pressure on states’ budgets, many are looking for new and effective paths
forward, away from reliance on this costly form of incarceration. Reducing the use of
segregation and improving conditions of confinement can affect thousands in one state alone and
greatly alter per-person costs of prison housing.14 Illinois—which, in September of 2012 had
over 49,000 men and women in state prisons—provides an example of the importance of
reassessing the use of segregation in the nation’s prisons. Although only about 5 percent of the
prison population was in segregation on any given day, more than half (56 percent) of the 49,000
had spent some time in segregation during their current prison stay. Recognizing the impact of
this, Governor Pat Quinn recently led the closure of two prisons and two juvenile facilities in the
state, including the Tamms supermax prison. Tamms was costing Illinois taxpayers more than
$26 million a year to hold approximately 180 maximum-security and 180 minimum-security
prisoners. This translated into almost $65,000 per year per prisoner—the highest cost of any
IDOC facility.15
Mississippi provides another example of the fiscal benefits of reducing the use of segregation.
Deputy Commissioner Emmitt Sparkman described the changes as follows: “In 2007, we had
nearly 1,300 inmates in long-term segregation and were spending hundreds of thousands of
dollars on litigation and maintaining the physical plant. Once we reduced segregation to 335
inmates, we were able to [permanently] close Unit 32. We moved staff to other locations and
there was attrition; we saved approximately $5.6 million a year and were able to avoid layoffs
and furloughs.”16
D.
Institutional and Public Safety Impacts of Segregation
Although the intent is to increase safety within prisons, segregation does not necessarily reduce
violence. A study of correctional systems in Illinois, Arizona, and Minnesota found that
segregating some prisoners in supermax facilities did little or nothing to lower overall violence
across the system.17 Prisoner-on-prisoner violence did not decrease in any of the three states.
Prisoner-on-staff assaults dropped in Illinois, staff injuries temporarily increased in Arizona, and
13
Ibid.
Ibid.
15
John Maki, “It’s Time for Illinois to Close Tamms Supermax,” The Huffington Post, May 23, 2012,
http://www.huffingtonpost.com/john-maki/tamms-prison-closure_b_1539255.html (accessed June 14, 2012).
16
Vera Institute of Justice Blog, “Mississippi DOC's Emmitt Sparkman on Reducing the Use of Segregation in
Prisons,” October 11, 2011, http://www.vera.org/blog/mississippi-docs-emmitt-sparkman-reducing-use-segregationprisons (accessed February 22, 2014).
17
This section is excerpted from The Findings and Recommendations of the Commission on Safety and Abuse in
America’s Prisons: Hearing Before the Subcomm. on Corrections and Rehabilitation of the S. Comm. on the
Judiciary, 109th Cong. (2006). 14
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
5
214
there was no effect in Minnesota.18 There also is some evidence that officers who work in
segregated housing units are more likely to be assaulted. For example, one study found that 57
percent of serious assaults on staff occurred in a control unit that housed less than 10 percent of
the facility’s prisoners.19 It may be that segregated prisoners, some of whom have histories of
violence, pose a greater threat to officers than prisoners in the general population. However, the
harsh living conditions in segregation and, at times, the harsh treatment received there may also
exacerbate tendencies toward violence.
Releasing prisoners directly to the community from segregation—a not uncommon practice—
poses significant dangers to the public as well. One rigorous quantitative study of recidivism
after release from prison for prisoners held in segregation found that those released directly from
supermax to the community had significantly higher felony recidivism rates and committed new
offenses sooner than prisoners who spent three or more months back in the general prison
population before release from custody.20
E.
Conditions in Solitary Confinement/Segregation
Prisoners may stay in segregated housing for years without the opportunity to engage in the types
of human interaction, treatment, and education experiences that would help them adjust when
reentering either the general prison population or society. Segregated prisoners are typically
taken out of their cells for only one hour out of every twenty-four for recreation or a shower.
However, in some systems, prisoners are released once a week for a total of five hours. Before
being released from their cells, prisoners are cuffed and may be shackled at the waist and placed
in leg irons. Recreation times may occur anytime from 7:00 a.m. until 3:00 a.m. Typically
recreation takes place in either an open cage outdoors (called a yard) or an indoor area,
sometimes with an open barred top. Because many exercise areas are exposed to the weather,
prisoners must choose whether to use them during extreme weather conditions or remain in their
cells. Extreme weather may greatly reduce the amount of time prisoners are out of the cell,
particularly when recreation periods are offered in five-hour blocks. Cellblocks or housing units
are also locked down for searches or when serious disruptions occur, further restricting access to
exercise and out of cell time.
Except when overcrowding requires double celling, face-to-face human contact with individuals
other than corrections officers is virtually eliminated in segregation. Officers deliver meal trays
through a slot in the door, and counselors and mental health staff conduct visits through the cell
door. Segregation prisoners typically are not allowed contact with other prisoners, and visits with
family members are curtailed or may be prohibited for a year or more. When visits are allowed,
18
Chad S. Briggs, Jody L. Sundt, and Thomas C. Castellano, “The Effects of Supermaximum Security Prisons on
Aggregate Levels of Institutional Violence,” Criminology 41 (2003): 1341-76.
19
Peter C. Kratcoski, “The Implications of Research Explaining Prison Violence and Disruption,” Federal Probation
52 (1988): 27, 28.
20
David Lovell, L. Clark Johnson, and Kevin C. Cain, “Recidivism of Supermax Prisoners in Washington State,”
Crime and Delinquency 53 (2007): 633-656; and David Lovell and Clark Johnson, “Felony and Violent Recidivism
Among Supermax Inmates in Washington State: A Pilot Study” (University of Washington, 2004).
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
6
215
they usually are conducted by speaker or telephone through a thick glass window, precluding the
opportunity for human touch.21
F.
Impacts of Segregated Protective Confinement on Vulnerable Populations
Physically or sexually vulnerable prisoners may be placed in administrative segregation or
solitary confinement for their protection. Although they might not have any violations or pose a
threat to staff or others, they are often housed in the same units, and with the same level of
intensive security, isolation, and restricted activities, as dangerous and violent prisoners.
Mentally ill and developmentally or intellectually delayed prisoners may be placed in
disciplinary or punitive segregation for violations related to their inability to function in a prison
setting or their vulnerability to manipulation by others.
Although the National Institutes of Health estimates the rate of serious mental illness in the
general U.S. population at six percent, among incarcerated persons, the rate triples to about 18
percent.22 A recent study noted that there were three times as many people with serious mental
illnesses in the nation’s prisons and jails as in its hospitals.23 Another study documented that 14.5
percent of male and 31.0 percent of female jail prisoners had current, serious mental illnesses,
rates much higher than in the general U.S. population.24 Prisoners with mental illness often have
difficulty functioning in the general population and are held in segregation. The rate of mentally
ill prisoners in administrative segregation is estimated to be significantly higher than in the
general prison population.25 A random sample study identified serious mental illness in 45
percent of prisoners in supermax housing.26
The presence of severely mentally ill prisoners in segregation may make it more difficult to
manage other prisoners and negatively affect conditions for officers and other prisoners on the
unit. Prisoners with mental illness typically receive fewer face-to-face services in segregation
than they would in the general prison population and may decompensate or act out, resulting in
additional disciplinary segregation time. Housing physically or sexually vulnerable, mentally ill,
and developmentally delayed prisoners with dangerous and high-security risk prisoners in
21
Angela Browne, Alissa Cambier, and Suzanne Agha, “Prisons Within Prisons: The Use of Segregation in the
United States,” Federal Sentencing Reporter 24, no. 1 (2011): 46-49.
22
National Institute of Mental Health. (2010). The Numbers Count: Mental Disorders in America.
http://www.nimh.nih.gov/health/publications/the-numbers-count-mental-disorders-in-america/index.shtml (accessed
May 9, 2013); Dinnon, P.M. (1999, July). Mental health and treatment of inmates and probationers. Washington,
DC: U.S. Department of Justice, Bureau of Justice Statistics; O'Keefe, M.L. and M. Schnell (2008). Offenders with
Mental Illness in the Correctional System. Journal of Offender Rehabilitation, 45, 81-104.
23
E. Fuller Torrey et al. 2010. More Mentally Ill Persons Are in Jails and Prisons than Hospitals: A Survey of the
States. Arlington, VA: Treatment Advocacy Center and the National Sheriff’s Association (May).
http://www.treatmentadvocacycenter.org/storage/documents/final_jails_v_hospitals_study.pdf (accessed September
27, 2011).
24
H.J. Steadmean, F.C. Osher, P.C. Robbins, B. Case, and S. Samuels, “Prevalence of Serious Mental Illness
Among Jail Inmates,” Psychiatric Services, 60, no 6 (2009).
25
O’Keefe, Maureen and Marissa Schnell. 2007. Offenders with Mental Illness in the Correctional System. Journal
of Offender Rehabilitation, 45(1-2): 81-104.
26
Lovell, David. 2008. Patterns of Disturbed Behavior in a Supermax Prison. Criminal Justice and Behavior, 35(8):
985-1004. http://cjb.sagepub.com/content/35/8/985 (accessed May 8, 2013).
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
7
216
segregation units unnecessarily increases the population in these units, creates security
challenges due to the deficits in physical/intellectual functioning and vulnerability to
manipulation and abuse of these prisoners, and eliminates congregate and programming options
that would be available in the general prison population.
Similarly, prisoners who are placed in solitary confinement as a means to protect them from
sexual assault are exposed to a harsh environment that may eliminate opportunities to interact
with others and benefit from programming, reduce face-to-face time with mental health or other
providers, and result in emotional and physical decompensation and lack of preparation for
successful release to community due to restrictions in this high security setting.
G.
Vera’s Segregation Reduction Project
Launched in January 2010, Vera’s Segregation Reduction Project (SRP) aims to demonstrate that
states can reduce the numbers of prisoners they hold in segregation without jeopardizing
institutional or public safety, as well as to create a replicable model that can be adapted for use in
other jurisdictions. Innovations by an increasing number of jurisdictions demonstrate that prison
systems can effectively reduce their use of segregation and safely enhance alternatives, thus
improving conditions of confinement for prisoners and leading to cost reductions.
It does this by working with state prison systems to
§ Analyze the use of segregation and its outcomes throughout the state prison systems;
§ Review criteria to determine who should be held in segregation and who could be moved
safely to the general prison population;
§ Enhance programs to safely transition prisoners out of segregation;
§ Make recommendations for alternatives to segregation for vulnerable populations;
§ Improve programming and conditions of confinement for those who remain in
segregation; and
§ Analyze whether the reduction of the use of segregation effects overall levels of violence
in the institution or the re-commission of violations.
The SRP is currently partnering with the Illinois Department of Corrections, the Maryland
Department of Public Safety and Correctional Services, and New Mexico’s Corrections
Department. The project also collaborates with the Washington State Department of Corrections
to assess its segregation policies and practices, analyze the effects of its use of segregation, and
implement recommendations for enhancing responses to protective custody, disciplinary, and
intensive management populations.
I.
Segregation Reduction Project Findings
The findings presented below are based on intensive assessments in 21 key prison facilities in the
United States and demonstrate the importance of policy and practice change in the use of
segregation.
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
8
217
§
§
§
§
§
§
§
§
§
II.
Segregation sentences are frequently out of scale for the type and severity of the offense,
especially since alternative sanctions (such as confinement in cell or restrictions in
privileges) are available.
Despite their relatively lower risk of violence or serious threats to others, women are
often subject to the same harsh system of discipline, restricted housing, and restraints as
men – and often for less serious violations then men.
Special needs populations (severely mentally ill, developmentally/intellectually delayed,
and vulnerable prisoners with no prison rule violations) are often held in high-security
segregation units with the same restrictions, lack of programming and activity, isolation,
and extreme use of restraints as dangerous prisoners and those with serious in-prison
offenses. Due to their inability to function in the open prison population, they often
remain in segregation for years in conditions inappropriate for their needs and violation
histories.
Prisoners sent to disciplinary segregation for rule violations often accumulate extensive
additional disciplinary time by committing violations while in segregation such as
yelling, banging, defacing their cell, or throwing objects through the food slot, and may
spend multiple years in segregation as disciplinary sentences accumulate.
Prisoners in administrative segregation (who have not been identified as having
committed rule violations but are considered a threat to the safe and orderly operation of
the system) also may spend multiple years (sometimes, more than a decade) in
segregation without an anticipated release date, and are held without needed services,
congregate activities, programming, or mechanisms to earn their way out of segregation.
Prisoners in both punitive and administrative segregation often go long periods without
reconsideration of their length or conditions of stay.
State DOCs may not comply with their own policies for minimum and maximum
sentence lengths for disciplinary sentences. For example, disciplinary segregation
sentences may routinely exceed the number of days allowable in a system’s Sentencing
Matrix and more than double the maximum sentence.
The sentencing policies within corrections have often stood for decades without
reexamination.
Changes in the use of segregation and alternatives can alter the lives of thousands of
prisoners (usually those experiencing the most severe prison conditions) even in a single
jurisdiction.
Bringing About a Culture of Change
The SRP uses a collaborative approach that combines (a) intensive site visits to key facilities, (b)
in-depth workgroup sessions with system and facility administrators and staff on their use of
segregation, challenges, and needs, (c) policy and case file reviews, (d) debriefings for
administrators and staff on project findings, and (e) comprehensive quantitative analyses to
provide corrections officials with data-informed recommendations. Close collaboration at the
agency and facility level and attention to a state’s unique challenges encourage statewide
adoption of changes. For example, in the Illinois Department of Corrections (IDOC), Vera and
IDOC administrators presented SRP’s recommendations to all 27 wardens, and changes are now
being implemented in all IDOC facilities.
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
9
218
III.
Progress Updates from SRP Partner States
Some of Vera’s partner sites have provided updates regarding their progress below.
1. Illinois Department of Corrections (IDOC) – Segregation and Administration
Detention Project27
In January 2011, the Illinois Department of Corrections kicked off its Long Term
Segregation and Administrative Detention project, informed by the work of Vera Institute
of Justice. In the latter part of 2010, Vera visited each of the Department’s Maximum
Security prisons as well as our Closed Maximum facility, Tamms. Vera partnered with
the Department’s Planning and Research Unit to provide statistics, which drove the
direction of the project. At project kick-off, the Department had 2,204 segregation
inmates with 2.8 years as an average length of stay in segregation. Vera analyses also
revealed that 85 percent of the segregation population was in disciplinary segregation
for less severe types of infractions. Since it was also found that those who spent less time
in segregation were not more likely to commit new violations during the first twelve
months of release into general prison population, we were on our way to identify areas of
improvement.
The implementation of Vera recommendations has several layers of effort:
•
Culture Change. We committed to changing the culture of discipline in our
facilities by utilizing progressive discipline, rather than providing literal
interpretation of the disciplinary code violation chart, thus resulting in less time
in segregation and more appropriate and effective sanctions. This effort will help
reduce the number of new disciplinary segregation inmates. During the past
calendar year, the overall population grew by approximately 900, during this
time we reduced the number of offenders in segregation by 90.
•
Mental Health. To support progressive appropriate discipline, we are including
our Mental Health staff on reviews of segregation placements.
•
Incentive Program. In the instances where we had inmates serving years of
segregation time, we instituted a Long Term Segregation Incentive Program to
assist in behavioral modification and return to general population through a
tiered approach. This has been positively received by both staff and inmates.
•
Restoration of revoked time. Department practice has been when an offender is
sent to segregation, depending on the offense, we also revoked any good time
earned. The Department is reviewing offenders with revoked time and restoring
time where warranted. In FY12, over 97,000 days were restored.
In 2013, our Closed Maximum facility (Tamms) closed. These offenders were transferred
27
Update provided by the Department of Corrections, March 2013.
Written Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
10
219
to our other maximum security facilities. They have been given the opportunity to
participate in the incentive programs already described.
The Mantra of the program has been to determine if we are ‘mad at the offender or
scared of them’ when making recommendations for segregation time and transfer. Taking
the personal element out of the applied discipline has been a benefit to the Wardens in
their constant review of the segregation time applied. To date, we have seen
improvements in the behavior of the inmates serving segregation time, which lessens the
safety concerns to our staff. At some facilities, the segregation unit has seen a drop in
numbers so that the cells can be used for general population. …. Updates from our
professional staff indicate that the modified approach with the buy-in of staff is making
this project a success.
2. Washington State Department of Corrections (DOC) – Segregation Reduction
Project
In May 2011, we asked Vera to come assess our Intensive Management Units (IMUs) and
give us recommendations for improvements. A prison system can largely be judged by
how it operates its highest-custody units. Due to budget cuts, we were losing a
partnership with the University of Washington that helped us assess and examine use of
long-term segregation, and we wanted to reach out to an independent organization on a
national level.
Based on the Segregation Reduction Project’s review and recommendations, a committee
of administrators, mental health staff, and managers of WA DOC’s segregation units are
now developing plans to implement some of Vera’s recommendations, including
providing more resources to mentally ill offenders and other vulnerable populations in
segregation and creating programming in group settings for offenders in segregated
living units.
Today, we are working on expanding our Intensive Transition Program (ITP): a program
designed to gradually introduce IMU offenders back into general prison population.
Targeted to offenders who frequently return to the IMU, the ITP at Clallam Bay in
northern Washington has an 80 percent success rate and enhances staff and public safety
by having fewer offenders return to their communities directly from segregation units.
Since our involvement with Vera, we have committed more dollars to this successful ITP
program and have doubled it in size. We are also seeking ways to expand mental health
treatment into more IMUs around the state. In November 2011, we also permanently
closed a 100-bed segregation unit at the Washington State Penitentiary and have safely
reduced the number of segregated prisoners by 170 at a time when the incoming offender
population was becoming more violent. Only about 2.7 percent of the 16,000 beds in the
Washington prison system are now housed in Intensive Management Units.
We have also significantly expanded congregate opportunities in our IMUs while
maintaining safety, based on the Vera’s suggestions. The Motivating Offender Change
(MOC) Program IMU congregate learning program at the Washington State Penitentiary
has been in operation since August 2013, utilizing violence reduction cognitiveWritten Testimony of Nicholas Turner
President and Director, Vera Institute of Justice
11
220
behavioral interventions (CBI). This program employs creative structures using high
security chairs that allow maximum custody prisoners (including opposing gang
members) to receive programming in a classroom-like environment. This is offered on a
voluntary basis and is popular with inmates and staff. The IMU at Monroe Correctional
Complex also has instituted a congregate learning program with mental health/CBI
components. This programming is delivered in a classroom setting, again using high
security seating. Congregate programming is also beginning for the IMU/ITU population
at WA DOC’s women’s facility. (See Attachment A)
WA DOC also has completed a pilot study to determine the incidence of developmentally
and intellectually disabled offenders and those with traumatic brain injury in the
population. The Department of Corrections (DOC) is creating a Skill Building Unit
(SBU) at Cedar Hall – Washington Correction Center (WCC). This special housing will
ensure that offenders with Intellectual Disability (IQ below 69), many with Borderline
intellectual Functioning (IQ 70 – 79), and some offenders with a Traumatic Brain Injury
at the moderate and severe levels are appropriately treated, protected from abuse, and
provided specialized habilitation programming in a safe secure environment. Offenders
will develop skills that will allow them to function more independently both while in
prison and when released. (See Attachment B) Providing housing that meets the needs of
these special populations will reduce the potential for offenders with DD/ID/TBI to be
housed in and remain in segregation and maximum custody beds.
Overall, we have seen a 30% reduction in the use of segregation statewide from January
2011 to June 2013. We have also experienced a decline in “use of force” incidents in the
Washington State Penitentiary (including mental health, high risk, and gang populations)
from June 2012 to March 2013 and a decline in inmate grievances.28 (See Attachment C)
3. New Mexico Corrections Department – Innovative Practices29
•
A Restoration to Population Program (RPP) began at a northern correctional
facility this January in response to Vera recommendations. The goals of this
program are to (a) integrate prisoners from Level 6 (Administrative Segregation)
to Level 3 (Medium Security - GP) and (b) develop a gang renunciation program.
The first group of prisoners to start the RPP pilot were 25 interactive, nonpredatory prisoners who moved from Level 6 (Administrative Segregation) to a
step-down unit in their home facility for three weeks, then moved to this facility to
participate in the RPP program. The second group of 25 to 26 Level 6
(Administrative Segregation) prisoners will be moving to the RPP program soon.
The initial target was to identify 140 prisoners for the program, but prisoners
have begun requesting to join the program and we are weighing expansion. This
will help reduce the state’s Level 6/Administrative Segregation crowding issues
and reduce its use overall.
28
29
Washington State Department of Corrections. (2013). Restrictive Housing (DOC Internal Report). Olympia, WA.
Update provided by the Director of Prisons, Jan 2014.
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•
Restoration to Population Program (RPP) for prisoners with mental health
issues. The Department’s Alternative Placement Area (APA) provides mental
health services for Level 6 (Administrative Segregation) prisoners. In
reassessing, we believe the vast majority of these prisoners are non-predatory and
do not meet the current definition of who should be placed in Level 6
(Administrative Segregation). Prisoners who are identified as non-predatory will
be moved to a Mental Health Treatment Center facility. This environment will
make it easier to provide group counseling and other MH programs than possible
in the current segregated environment. Those APA prisoners who are identified as
predatory (about 12 cells) will be transferred to a more secure setting. These
moves will decrease the size of the APA population and move non-predatory
prisoners with mental health challenges from a strict segregation environment to
one that better facilitates mental health programming and reintegration to the
general population.
•
Response to Gangs.
o A separate correctional facility houses all active currently non-predatory
prison gang members. At this facility, we will offer cognitive and other
education programming, as well as a “Cease Fire” program, specifically
for gang members.
o One prison gang will be downgraded from a Security Threat Group to a
Disruptive Group. This allows these prisoners to be housed in below Level
4/Maximum Security housing. Again this will help reduce crowding in Level
4/Max facilities and reduce our use of segregation. Through revised use of
the Level system, we have witnessed the demise of one prison gang and are
now designing responses to meet the needs of the dozen or so remaining
active, non-predatory members.
•
Motivating for Offender Change is a program that will be used for those
prisoners identified as predatory and appropriate for Level 6/Administrative
Segregation; this program is currently proving successful in Washington State’s
Department of Correction.
•
Protective Custody prisoners are housed in a group setting in one Level
3/Medium security facility, instead of in segregation-type units. They live in a GPlike setting with congregate activities and out-of-cell time, recreation, therapeutic
groups, and programming, except that they only interact with other PC prisoners.
Populations in this PC include sex offenders, ex gang members, ex law
enforcement members, and other at risk prisoners.
•
The Department also is working to shift the emphasis away from using
Disciplinary Segregation in response to infractions and enhance the use of
alternative sanctions. This is still a work in progress since much of the change
has to do with changing the culture.
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•
Finally, the Department has revised policy to effectively reduce the amount of
time it takes for prisoners to move through the disciplinary disposition process.
This policy update is in process.
Overall, the Department is convinced that these changes, as well as others in the
planning stages, are going to significantly reduce our segregation numbers and better
meet all programming needs. The RPP and the PC implementations are already
progressing much more smoothly than expected.
H.
Recommendations
I. Strategies to Reduce Use of Segregation in Confinement Settings
While the immediate need in most jurisdictions is to reduce the number of people in
segregation and improve conditions for those remaining, attention should also be paid to
implementing longer-term strategies to reduce the need for such drastic measures. For
example, increasing the training and tools available to corrections staff, particularly in
communication skills and conflict reduction techniques, can help reduce the defiance,
hostility, and disrespect that so often leads to the violation by prisoners of rules and
commands, and give officers the tools to defuse prisoner-on-prisoner conflicts and
assaults. Providing more pro-social activities and greater degrees of autonomy within
institutions can also lessen boredom that so often leads to anti-social outbursts against
staff and other prisoners.
In the near term, innovations by an increasing number of jurisdictions demonstrate that
prison systems can effectively and safely reduce the use of segregation. Based on
ongoing implementations in SRP partner states and other jurisdictions, alternative
sanctions for disciplinary violations (such as restricted movement in their current housing
and reduction in other privileges) have proven as effective or more effective in reducing
costs and improving outcomes while maintaining or enhancing safety for staff and
prisoners. Strategic approaches to achieving positive results include:
1. Reducing intakes to segregation by using alternative sanctions for all but the most
serious violations. Alternative sanctions may include restrictions of privileges like
visitation, programs, commissary, and recreation time; restrictions on movement
(referred to in some systems as “confined to cell” or “keep locked”); or transfers to a
different facility or level of security.
2. Limiting the violations for which segregation is a sanction, and segregation time
for categories of violations. For violations such as talking back (insolence), being out
of place, failure to report to work or school, or refusing to change housing units or
cells, alternative sanctions should be considered.
3. Reviewing currently segregated population. Conducting individual case reviews will
allow policy changes, such as fewer violations that result in segregation and reduced
segregation time, to apply to the currently segregated population. Such reviews would
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include assessments of the violation leading to segregation time, behaviors while in
segregation, and potential for safe release to the general prison population.
4. Providing tiered incentives to reduce segregation time for sustained good behavior.
Providing incentives in the form of reductions in segregation helps encourage good
behavior and gives facility management flexibility to manage behavior.
5. Increasing protective custody (PC) bed availability to prevent prisoners from
remaining at higher custody levels than necessary. Specialized PC units provide
opportunities for congregate activities and programming to help prisoners
successfully return to the general non-PC population (when it becomes safe to do so)
or the community, are a more effective setting for therapeutic and other service
delivery, and, once established, are less costly than segregation units.
Jurisdictions have demonstrated that this can be done even with challenging
protective custody populations. At Lea County Correctional Facility in New Mexico,
prisoners with sex offense convictions, ex-law enforcement officers, and gang
members requiring protection are successfully integrated in units that operate similar
to general population housing. Prisoners in PC eat together, take recreation together,
go to school and religious meetings together, and participate in a wide range of
classroom and group-based programming. A therapeutic community treatment model
allows group participants to talk about issues like substance abuse. Non-violent
segregation prisoners from other institutions are also transferred to Lea County so
they can live in congregate, program-enriched settings. Classrooms and dayrooms
during congregate activities appear quiet, safe, orderly, and interactive.
6. Creating or expanding “missioned” general population housing targeted to the
needs of prisoners who are mentally ill, developmentally delayed, or at risk for
sexual victimization or other bodily harm. Designing housing for mentally ill and
vulnerable protective custody prisoners in general the prison population provides
greater access to mental health resources, programming, and opportunities for
congregate activities, and reduces exposure to litigation. Administrators can create or
expand dedicated housing units where programming, procedures, and other
conditions are tailored to the needs of populations, while still ensuring safety. These
units help systems reserve scarce security resources for ensuring the safety and
security of all populations, creating potential cost savings.
Missioned housing allows focused delivery of procedures and programming for
special needs populations. These units are most effective when placed in geographical
locations most likely to attract and maintain social work and mental health staff. Such
units afford prisoners opportunities to interact with each other and with staff during
meals, recreation, dayroom and work activities, and out-of-cell programming.
Disciplinary violations are handled on the unit whenever possible to avoid circulation
of unit residents through segregation units.
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7. Increasing programming for prisoners in segregation. Programming should include
opportunities for gradual resocialization to prepare prisoners for return to the general
prison population and congregate activities for prisoners serving long terms in
segregation.
This includes structuring housing, procedures, and programming by types of prisoners
in segregation, so security resources are used only as required to maintain the safety
and security of each population. These units address violence, gang disaffiliation, and
behavioral interventions for prisoners who continually return to segregation. Security
protocols and staffing are targeted by housing unit for each focus.
8. Improving basic physical conditions. Where practical, high security units of all types
need improved basic physical conditions in cells and recreational spaces to reduce the
severe impact on mental and physical health. For example, more natural light, larger
cells, and recreational spaces that are protected from the weather are changes that do
not compromise safety; introducing minor privileges, like increased access to reading
and writing materials or other personal possessions, offers stimulation and their
removal is a potential sanction for violations.
9. Increasing mental health and social work staff across facilities and special
needs/protective custody units to enhance the delivery of treatment and programs
and reduce disruptions.
10. Implementing transition programs and housing to transition segregation prisoners
to the general population prior to their release from custody. Such programs would
include preparation for congregate activities and housing, preparation for job
opportunities in the community, and linking to resources in the community.
II. National Recommendations
1. Mandate gathering of national data on segregation. A major challenge with existing
national-level data on segregation is a lack of clarity on types of segregation. For
example, to date there are no reliable national statistics on populations in different
forms of segregation. Additionally, the current BJS census does not include
segregated populations in jails or Immigration and Customs Enforcement detention
centers, so the size of this population is completely unknown. The BJS census also is
conducted only once every five years. A more comprehensive census, completed
more regularly and with more precise definitions, is vital to inform decision-making
and legislation on the use of segregation in the United States.
2. Conduct a national study on the impact of segregation. Expert studies should be
funded to assess the costs of the use of (different types of) segregation compared to
housing in the general prison population, and costs associated with incarceration in
prison overall. In 2011, Vera’s Cost Benefit Analysis Unit (CBAU) developed a
sophisticated methodology to calculate prison costs and conducted a survey to collect
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this data. While this survey did not include specific information on segregation, it
could be used as a model for this type of data collection.
3. Create national standards. National standards on the use of segregation would
encourage the field to adopt best practices for these settings. Some examples of
similar work that Vera has been involved with include staffing of the privately funded
Commission on Safety and Abuse in America’s Prisons (the subject of a 2006
Subcommittee Hearing on Corrections and Rehabilitation),30 and assisting the
congressionally-mandated National Prison Rape Elimination Commission in
developing the national standards to address sexual abuse in confinement settings.
Creation of national standards governing the use of segregation would build on the
work already undertaken by many states and this Subcommittee.
I.
Concluding Statement
In closing, I would like to thank the Chairman and Ranking Member for holding this
important hearing, and for the opportunity to provide written testimony. Please do not hesitate to
contact us if the Vera Institute of Justice can provide further assistance.
30
The Findings and Recommendations of the Commission on Safety and Abuse in America’s Prisons: Hearing
Before the Subcomm. on Corrections and Rehabilitation of the S. Comm. on the Judiciary, 109th Cong. (2006). See
also Confronting Confinement (New York: Vera Institute of Justice, 2006).
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President and Director, Vera Institute of Justice
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