Reducing Jail: A New York Story

We are living through a fascinating moment in terms of criminal justice policy in the United States.

When I first started working in criminal justice in the early 1990s, it was almost impossible to have a conversation with an elected official or a high-ranking criminal justice policymaker of any political persuasion without talking about the need to be “tough on crime.”  The backdrop for these conversations was a pervasive sense of fear (of lawlessness on the streets) and despair (about the prospects of successfully rehabilitating offenders).

Today, I turned on my computer to discover that Newt Gingrich has endorsed the idea of reducing incarceration in the United States.  He is not the only voice on the right calling for change.  Indeed, hopeful analysts have cited criminal justice reform as one of the few potential areas where Democrats and Republicans in Washington might find common ground in the final two years of President Obama’s term.  Clearly, the center of gravity has shifted in terms of the politics of crime.

A lot of hard work has gone into making this happen. The “justice reinvestment” movement has played a particularly crucial role, advancing a bipartisan approach to criminal justice that relies on hard data rather than the politics of emotion.  The U.S. Department of Justice has also made an important contribution by documenting what works and then disseminating this information to the field (crimesolutions.gov).

These national-level efforts have been bolstered by numerous reformers working at the state and local level to demonstrate that it is in fact possible to reduce the use of incarceration without undermining public safety.

Take New York, for example.  Between 1999 and 2012, New York reduced its prison population by 26 percent—a decline of nearly 20,000 inmates.  The use of jail in New York City has also been reduced—the daily head count on Rikers Island is now less than 11,000, down from more than 21,000 at its peak.

Even as New York’s jail and prison rolls have gone down, so too has crime, declining by 69 percent over two decades.

Most of the public acclaim for these developments has gone to the New York Police Department and New York City mayors who have made crime-fighting a priority. Under the radar, the judicial branch has also played an important role.

Thanks to the leadership of Chief Judge Jonathan Lippman and his predecessor Judith S. Kaye, the New York courts have made a sustained institutional commitment to creating a variety of alternative-to-incarceration programs.  The courts have developed special programs for defendants with substance abuse and mental health problems.  They have sought to increase the use of services in cases involving 16 and 17-year old defendants and victims of human trafficking.  And they have launched a number of community-based programs that have sought to promote alternative sentencing in high-crime neighborhoods. (In the interests of full disclosure, my agency—the Center for Court Innovation— has worked with the judiciary to conceive and implement many of these projects.)

Crucially, the alternative programs launched by the New York courts target not just felony defendants but also people charged with misdemeanors.  Misdemeanor convictions may expose defendants to less time behind bars, but the consequences can be long-lasting in terms of employment, housing, child custody, student loans, immigration status, and a host of government benefits. For many, a misdemeanor conviction is another step along a path that leads toward a life of poverty.

While much of the popular discussion focuses on federal sentencing guidelines and the need to reduce state prison populations, there is significant work to be done at the local level to reduce the use of jail.  (Jails are typically administered by counties and are designed to hold defendants awaiting trial and inmates sentenced to a term of less than 1 year. Prisons are run by the state or the federal government and typically hold inmates serving sentences of more than 1 year.)

One of the hidden truths of the justice system is that minor cases are much more voluminous than serious offenses. As John Jay College recently documented, nearly 75 percent of the arrests that the police make in New York City are for misdemeanor crimes – more than 235,000 in 2012, for example.

In response to the preponderance of minor cases, the New York courts (with an assist from the Center for Court Innovation) created Bronx Community Solutions to provide criminal court judges in the Bronx with additional sentencing options for non-violent offenses such as drug possession, shoplifting and prostitution.  This includes community restitution projects as well as social service classes, job training and individual counseling.

One challenge that has long plagued alternative-to-incarceration programs is the Field of Dreams question: if you build it, will they come?  Will judges actually avail themselves of alternatives?

The experience in the Bronx suggests that when alternative programs have been developed with the active involvement of the judiciary, they are more likely to win the support of the judges on the ground who ultimately determine whether someone is incarcerated or stays in the community.  According to the New York City Mayor’s Office, after Bronx Community Solutions began offering alternative sentences to misdemeanor defendants in the Bronx, the percentage of convicted defendants sentenced to jail fell from 23.7 percent in 2004 to 13.5 percent in 2012—a 43 percent reduction.  Keep in mind, this is not a boutique program dealing with a handful of participants; each year Bronx Community Solutions works with about 9,000 defendants.

But this battle is by no means won—plenty of work remains to reduce the number of people in Rikers Island, particularly those who are detained pre-trial.  However, Bronx Community Solutions has made one thing perfectly clear: change is possible—even in high-volume, urban justice systems.



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We Need Fair Chance Hiring of People with Criminal Records

The police shooting of Michael Brown provides yet another reminder of the need to address decades of over-criminalization and under-employment that have punished communities of color.   A timely Center for American Progress report, “How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records” – co-authored by Rebecca Vallas and Sharon Dietrich – helps advance a comprehensive criminal justice reform agenda as Americans struggle to respond to the troubling developments in Ferguson and across the nation.  Work plays a key role in that agenda.

Work not only reinforces an individual’s sense of pride, purpose and identity – and, of course, allows an individual to earn a living – but also contributes to strong communities and a thriving economy.  When one in four Americans faces the very real prospect of being locked out of the labor market because of a criminal record, then we all suffer a great loss in productivity and human capital.  However, if we seize on promising solutions, we can change this reality and create new opportunities for people who are struggling against significant odds to turn their lives around.

As featured in the CAP report, multiple strategies must be pursued in order to address the collateral damage caused by the proliferation of criminal background checks for employment. It starts with aggressive enforcement of federal civil rights and consumer laws that are already on the books to strictly regulate employers and the background check industry, including Title VII of the Civil Rights Act of 1964 and the Fair Credit Reporting Act.  Reform must also include broader sealing and expungement of misdemeanor and felony records, correcting faulty criminal records databases, and strengthening appeal protections that allow workers to navigate the thousands of occupational licensing laws that require criminal background checks.  Ultimately, we must create a process that allows people to compete for employment based on their merits instead of being stigmatized by their criminal records.

Significantly, organizations and elected officials from across the ideological spectrum have rallied around fair chance hiring reforms.  Fair chance hiring incorporates “ban the box” policies, which remove the criminal history question from the job application and delay the background check until later in the hiring process.  Fair chance hiring also incorporates the criminal background check guidelines adopted by the U.S. Equal Employment Opportunity Commission (EEOC), which require employers to take into account the age of the offense, whether the offense is related to the individual’s job, and whether the individual has been rehabilitated.  And finally, fair chance hiring calls for strong standards of accuracy and transparency to maintain the integrity of the background check and protect workers against unfair and arbitrary treatment.

In just the past two years, eight states passed fair chance hiring laws, which increasingly extend not just to government employers but private sector employers as well.  Most recently, Republican Governor Chris Christie of New Jersey signed fair chance hiring legislation, stating, “We are banning the box and ending employment discrimination.”  There are now 13 states and over 80 cities and counties that have adopted ban the box and other fair chance hiring reforms.  And three of the top five U.S. retailers – Walmart, Target and Home Depot – have also joined the effort by delaying criminal history inquiries until later in the hiring process.   Meanwhile, 2015 promises to be another big year, with fair chance hiring campaigns already underway in Ohio, Texas, New York City, and Los Angeles, to name just a few places.

Work not only reinforces an individual’s sense of pride, purpose and identity but also contributes to strong communities and a thriving economy.

These reform policies can have a measurable impact on employer hiring practices.  For example, in the four years since Durham implemented its fair chance hiring policy, city officials have documented a seven-fold increase in the hiring of people with criminal records.  Progress has also been demonstrated in Minneapolis and Atlanta since the enactment of their fair chance hiring policies.

While fair chance hiring is not a panacea for all barriers associated with a criminal record, it is a strategy that resonates deeply with communities severely impacted by over-criminalization.  It provides a platform to engage elected officials in a serious debate about the devastating legacy of the War on Drugs and its effect on struggling families and communities.  In fact, “ban the box” was the brainchild of a membership organization of the formerly incarcerated, called All of Us Or None. Together with faith-based leaders, including the PICO Network, the Formerly Incarcerated and Convicted People’s Movement, and other allied organizations, All of Us Or None is fighting to restore the full rights of people with criminal records to access employment, housing, education, public assistance, and the vote.

Now is the time for the federal government to act boldly, building on the wave of fair chance hiring reforms at the state and local levels.  The Obama Administration should require fair chance hiring by federal contractors and clean up the flaws in the federal hiring process, which unfairly disadvantage people with criminal records.  The recommendation of President Obama’s My Brother’s Keeper Task Force resonates loud and clear:  “Our youth and communities suffer when hiring practices unnecessarily disqualify candidates based on past mistakes.  We should implement reforms to promote successful reentry, including encouraging hiring practices, such as ‘Ban the Box,’ which give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits as they reenter the workforce.”

Given the bi-partisan support for criminal justice reform, backed by organizations like Right on Crime, the new 114th Congress will also be well-positioned to enact fair chance hiring legislation.  The new Congress should immediately take up the REDEEM Act, co-sponsored by Senators Corey Booker (D-NJ) and Rand Paul (R-KY), as well as legislation sponsored by Congressmen Bobby Scott (D-VA) and Keith Ellison (D-MN)  that would correct the millions of faulty background checks for employment  generated each year by the FBI.

These are challenging times for the nation. But if ever there were a time to seize momentum and make lasting change in the lives of people with criminal records, this is it.



Poverty, Incarceration, and Criminal Justice Debt

In today’s economy, overwhelming debt is an unfortunate reality for millions of Americans.  From credit card debt to mortgage debt to student loan debt, Americans increasingly live off of borrowed money. But few realize how the criminal justice system imposes increasing debts on individuals. Worse still, criminal justice debt perpetuates mass incarceration.

Individuals processed through the judicial system in many states are charged fees and fines at every turn. There are fines intended to punish an individual for the commission of an offense, like speeding fines.  There are fees intended for repayment of any harm caused to victims, including restitution payments and contributions to victim funds.

But there are other, less visible costs as well.  For example, correctional facilities across the nation charge fees to their inmates for countless reasons. The Mason County Detention Center in Kentucky charges $25 a day to stay at the facility, in addition to a $20 booking fee, a $5 release fee, and a $7 medical co-payment fee. Other jails charge for toilet paper and clothing. Then there are fees for using the criminal justice system itself. Forty-three states and the District of Columbia allow fees for a public defender, and 44 states charge individuals for using probation services. Though many of these fees may seem relatively small – public defender fees range from about $50 to $200 – they add up quickly and a defendant can emerge from the system with thousands of dollars in debt.

These charges are an outgrowth of mass incarceration. As the criminal justice system expanded to include almost 7 million individuals under correctional control through supervision or incarceration, so did its costs. States – many facing tight or disappearing budgets – chose to shift the increasing cost burden to defendants instead of picking up the tab.  For example, in Ferguson, Missouri, the city relied on rising municipal court fines to make up 20 percent of its $12 million operating budget in fiscal year 2013. These fees and fines impose an additional penalty on individuals above and beyond their actual sentences. Even worse, it is at cross-purposes with the goal of release: to reintegrate the individual as a productive member of society. This is an extremely difficult goal to accomplish when one is already set back by a mountain of debt obligations.

In the end, criminal justice debt burdens more than just the individual caught up in the criminal justice system.

Criminal justice debt” refers to the accrual of these fees and fines, and they are onerous for most individuals entering the justice system. Approximately 80 percent of those who enter the criminal justice system cannot afford an attorney for their own defense, which suggests that they have little additional savings to pay back new debts.  Upon release from incarceration, the average formerly incarcerated white male earns about $11,140, or just around the federal poverty line.  Studies demonstrate that African Americans and Hispanics who are released from prison earn even less.  All the while, new debts await their return to the community.

The collection of criminal justice debt can be aggressive and further prevent successful integration. Some individuals face the withholding of income from paychecks.  Others face liens on their homes.  Placing barriers to obtaining a driver’s license is a common practice among the states, even though it frequently impedes an individual’s ability to secure employment.

In many jurisdictions around the country, failure to pay criminal debt extends an otherwise law-abiding individual’s entanglement in the justice system.  Many states extend the term of supervision for failure to pay, despite the reality that supervision costs money.  Another enforcement mechanism – the issuance of warrants for nonpayment of fees – pulls individuals before the court and may result in incarceration. Therefore, an individual can pay a penalty for an offense, and then be incarcerated for failing to pay off the debt incurred as a result of that offense.

Ironically, these tactics are costly to the state.  Probation officers, judges and court personnel must spend time serving as debt collectors. The privatization of debt collection is increasingly common, but the success of these companies is difficult to assess.  By 2011, uncollected criminal justice debt in the United States totaled $50 billion. Very little of this debt will be collected.  Florida, for example, expects to recover just 9 percent of the fees and fines imposed in felony cases.  In Washington State, the county clerks collect, on average, less than 5 percent of the total fees and fines imposed in a particular case.

In the end, criminal justice debt burdens more than just the individual caught up in the criminal justice system.  It burdens the state through collection. It burdens the family of the individual who cannot cover the debt payments necessary to stay out of jail, so the family tries to pay it for him.  It burdens the communities where these individuals return because criminal justice debt perpetuates poverty and prevents the accrual of resources necessary for socioeconomic equality. Moreover, criminal justice debt hinders reentry, often leading to extended periods of court-supervision and incarceration for individuals unable to pay. Such realities burden society at large by threatening public safety and increasing incarceration in already overburdened jail systems. These realities make clear that criminal justice debt reflects bad policy.

The Brennan Center for Justice, along with a growing number of policy organizations, practitioners, and academics, are working to improve the policies surrounding criminal justice debt. Reforms include advocating for the elimination of fees for using the criminal justice system – like the elimination of jail fees for the incarceration of individuals the state chooses to detain.  It also includes improving the assessment of whether an individual has the ability to pay fees and fines prior to their imposition.  Finally, on a broader scale, addressing criminal justice debt requires recalibration of the justice system to understand exactly how resources are spent, and why.  These steps are all part of a bigger battle to reduce our overreliance on incarceration – with its harmful side effects – in order to create a more rational and fair justice system.



Why TalkPoverty is Hosting Criminal Justice Reform Week

Between 70 million and 100 million Americans have some type of criminal record—that’s nearly one in three of us.

Many have only a minor record—a misdemeanor, or even an arrest without a conviction. But even a minor criminal record carries with it lifelong barriers that can block successful reentry and access to many of the essentials for economic security and upward mobility, like employment, housing, education, and job training.

The reason? Policy choices at the federal, state, and local levels, as well as the rise of technology and the ease of accessing data via the internet. A generation ago, access to criminal record information for housing applicants and jobseekers was unusual. Today, however, background checks are ubiquitous, with 4 out of 5 landlords and nearly 9 in 10 employers using criminal background checks to screen out people with criminal records before they even get a shot.

The result is that tens of millions of individuals are prevented from becoming productive members of society, and their families, communities, and the national economy are held back as well.

It is important to note that the lifelong consequences and stigma of having a criminal record stand in stark contrast to research on “redemption.”  Studies show that once a person with a nonviolent conviction is crime-free for three to four years, his or her risk of recidivism is no different from the risk of arrest for the general population. Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes—making it difficult for many to achieve basic economic security, much less upward mobility.

As detailed in a new Center for American Progress report to be released tomorrow—which I co-authored with Sharon Dietrich—mass incarceration and hyper-criminalization are now major drivers of poverty and inequality. Having a criminal record can stand in the way of employment, housing, public assistance, education and training, and more; convictions can result in significant monetary debts too. In fact, a recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that burden people for years after they have paid their debts to society.

Communities of color—and particularly men of color—are disproportionately affected, and high-poverty communities generate a disproportionate share of Americans behind bars. Approximately 60% of people in America’s prisons are racial and ethnic minorities.  Of those individuals serving time for drug offenses, about two-thirds are black or Latino.  Research shows that mass incarceration and its effects have been significant drivers of racial inequality in the U.S., particularly during the past three to four decades.

Millions of individuals are prevented from becoming productive members of society, and their families, communities, and the national economy are held back as well.

The barriers associated with a criminal record also hurt the nation’s bottom line. The Center for Economic and Policy Research estimates that the cost of people with criminal records being shut out of the labor market is a $65 billion annual hit to GDP. And that’s in addition to our nation’s skyrocketing expenditures for mass incarceration, which now total more than $80 billion annually.

It’s long past time that we create policies to ensure that Americans with criminal records have a fair shot at earning a decent living, providing for their families, and joining the middle class. Failure to address the lifelong barriers associated with a criminal record as part of a larger anti-poverty, pro-mobility agenda risks missing a major piece of the puzzle.

President Obama’s administration has been a leader on this important issue, for example by establishing the Federal Interagency Reentry Council, which has brought 20 federal agencies together to coordinate and advance effective re-entry policies. States and cities across the country are also beginning to take action: To date, 13 states and 70 municipalities have enacted fair-chance hiring policies to help level the playing field for jobseekers with criminal records. And cities such as New Orleans and New York City have taken steps to remove obstacles to public housing for people with records.

But further action is needed at all levels of government. Our new report offers a roadmap for the Obama administration and federal agencies, Congress, states and cities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.

Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidence-based approaches to public safety. Policymakers and opinion leaders from across the political spectrum are calling for sentencing and prison reform, as well as policies that give people a second chance. Now is the time to find common ground and enact meaningful reforms that ensure a criminal record does not consign an individual to poverty.

We are thrilled that in conjunction with our report, TalkPoverty.org is featuring posts throughout the week from leaders in the criminal justice reform movement—including the Brennan Center, the Vera Institute of Justice, The Sentencing Project, the Center for Court Innovation, Community Legal Services of Philadelphia, and more—all exploring the link between mass incarceration and poverty, and solutions that would break that link. This week is not intended to be a comprehensive examination of criminal justice reform—we know it will only scratch the surface. But we hope it will help advance this important conversation, and we look forward to TalkPoverty.org continuing its commitment to criminal justice reform throughout the year.




In Our Backyard Interview: Bringing Everyone to the Table

This interview with D.C. Central Kitchen continues our In Our Backyard series. D.C. Central Kitchen does critical work to provide job training for individuals who face barriers to employment and to connect them with job opportunities. They also prepare thousands of meals every day from food that otherwise would have been thrown away. This Thanksgiving, D.C. Central Kitchen provides a valuable example of how paying workers  living wages and good benefits supports communities.

Alyssa Peterson: Can you explain the mission of D.C. Central Kitchen (DCCK)?

Mike Curtin: We run a whole portfolio of social enterprise programs including catering and a locally-sourced, scratch-cooked school [meals] service here in D.C.

We also run culinary job training classes for men and women with histories of incarceration, addiction, abuse, homelessness, and chronic unemployment. We work with them intensely for 14 weeks, and empower them to find employment in the hospitality sector. If we have openings available, we will hire job training program graduates [for our social enterprise] programs… One of the beautiful things about [DCCK] is that 45% of our 150 employees are graduates of our program.

Our basic model is using what’s existing around us; whether that’s food that’s going to be thrown away, or people that have been marginalized, or kitchens that aren’t being used, or produce from farms that isn’t commercially viable because it’s aesthetically or geometrically challenged– it’s too big, or too small, or too skinny, it doesn’t fit in the right box.

We prepare 5,000 meals a day out of our main kitchen, using predominantly food that would have otherwise been thrown away from restaurants, hotels, grocery stores, food wholesalers, food producers, and farms. We then send the meals we prepare to agencies [(non-profits and shelters)] that are working to empower and liberate their clients. We are very intentional about this model. Our goal isn’t to simply pass out food in the hopes that someday that will end hunger. We’re never going to feed our way out of hunger.

Video Credit: Saba Aregai (Portfolio)

Alyssa: In terms of empowering and liberating clients, do you have an example of that?

Mike Curtin: The goal is to help people get to the place of self-sufficiency so that they have a job that pays a good wage that hopefully has benefits. One of the things that we often forget when we talk about civil rights leaders in the past, such as Dr. King, Gandhi, Chavez, or Bobby Kennedy, is that these folks were not just talking about physical inclusion.

Dr. King was not fighting and ultimately dying for the right for anyone to walk into any restaurant and sit at any table; [it] was for the right for anyone to walk into any restaurant, to sit at any table, and to be able to afford that meal. So it’s the economic freedom and the economic inclusion that we’re looking for.

For example, a student comes from a shelter into our training program. They’ve been incarcerated, maybe in a halfway house, maybe in prison for 30 years. Maybe this person is in their 50s and has never had a job. Maybe this person has children. And they come to us, and they go through the training program, and they get a job. And they get out of the halfway house. They get their own apartment. They support their families. That’s empowerment. That’s liberation. It’s a small start, but it’s a start.

Some of the most rewarding times for us are when graduates come in and show a gas bill or a lease they just signed. Someone may come in with a new set of keys to a house, and the only people that they’ve known that have had keys for the last 30 years were prison guards.

Alyssa: What separates your training program from others and also contributes to its success?

Mike Curtin: I think one of the things that makes the program different is that it’s part of this larger enterprise. People that work here in the kitchen are graduates of [our training] program. The woman who’s the director of that program was a heroin addict for 20 years. She got clean and went to culinary school and then eventually ended up coming here.

Even if some of us don’t have those particular stories, all of us come here a little broken, including myself. But I’ve been lucky to live in safe communities, go to good schools, and have a stable family life. I made a lot of mistakes, but I always had someone put me back on track.

We really try to create this environment where we’re all around this same table. It will only work if we work together.

A lot of the folks that come to us didn’t have those privileges. For that reason, we meet people where they are. In the old charity model in America, there’s one group—typically the wealthier, white group— saying, “Thank goodness that we’re here for you poor, uneducated, and formerly incarcerated people. Now we’re going to save you. Now we’re going to help you.”

In contrast, we really try to create this environment where we’re all around this same table. [It] will only work if we work together, regardless of whether a person is a felon, an addict, or homeless. We’re all cutting the same carrots, and we’re all learning how to do this together.

Alyssa: Does DCCK do a lot of advocacy in D.C.? Were you involved in the Ban the Box fight, for example?

Mike Curtin: We were. We are not an advocacy organization per se, [but] we work very closely with other organizations in town that are advocacy organizations.

Ban the Box was a big thing for us. We’ve been banging that drum for at least ten years. We know that the majority of people who get out of prison reoffend and go back again mostly because they can’t get a job. At DCCK, our recidivism rate is less than 2.5% because people get jobs, and they feel like they’re part of something bigger. They want to be part of the community. Nobody wants to be in prison, [and] nobody wants to live in the shelter.

Alyssa: It seems like your business model differs markedly from companies that don’t necessarily share your purpose. Why do you pay good wages and benefits as a company?

Mike Curtin: I don’t think we can expect other employers to provide benefits and pay living wages if we don’t do it ourselves. What we want to do is act as a model for what’s possible.

We start everyone at a living wage. We paid 100% of health insurance long before the ACA [(Affordable Care Act)] was ever around. Everyone has short-term and long-term disability insurance and a life insurance policy. We make a 50% match to every dollar that someone contributes to our 401k plan. We have a very liberal, very generous paid vacation and time off policy. Everyone who works here…from the newest hourly employer to myself has the exact same benefits.

However, in many ways we have an advantage. We are a mission-motivated business. We’re in business not to make dollars, but to make change in both senses of that word. We’re okay if we run our businesses, and we break even because the act of running that impact-oriented business has accomplished many of our goals.

We want business in general and others to think more like we do. A lot of people are saying now that non-profits need to think and act more like businesses. To a certain degree, yes. We have payroll to make just like everyone else. We have bills to pay, gas to put in our trucks, uniforms to buy, and food to purchase. But I think the role of non-profits—particularly non-profits who are operating social enterprises—is to get businesses to think more like non-profits and to recognize the value of these multiple bottom lines.