Mass Incarceration and the Health of Our Communities

Earlier this year, Jerome Murdough—a homeless veteran charged with trespassing—died after being left unchecked for hours in a sweltering cell in New York City’s Rikers Island Jail mental observation unit.  His death showed us what can occur when medical, social service, and criminal justice systems fail to meet the needs of vulnerable individuals. Stories like Murdoch’s, or those of other inmates with mental illnesses who are featured in the New York Times series “Locked In”—cast in high relief the challenges we face when reconciling punishment and the treatment of those who are incarcerated, especially people with mental illness.

This is not an issue unique to New York City. Across the country, people with mental health needs are too often warehoused in overcrowded, chaotic, and violent correctional facilities rather than treated in the community.

The Affordable Care Act (ACA), however, presents a tremendous opportunity to address this national crisis and ensure that patients like Murdough don’t end up on Rikers Island. The ACA provides one of the largest expansions of mental health coverage in U.S. history—extending it to 27 million people who previously lacked health insurance—and a wider range of benefits to 62 million U.S. citizens overall. Millions of uninsured, undertreated, and destitute people cycling through correctional systems will be covered for the first time.

This expansion of treatment opportunities, coupled with bipartisan agreement that we need a comprehensive overhaul of the criminal justice system, presents a rare opportunity for reform that we can and must seize.

The criminal justice system has expanded to such a degree that mass incarceration is now one of the major public health concerns facing poor communities, according to a new report from the Vera Institute of Justice. Since the 1970s, state prison populations in the U.S. have grown by 700 percent. Yet the nation’s overuse of incarceration succumbed to the law of diminishing returns long ago—creating more harm than good—with widening disparities in health as one of the results.

The concentration of incarceration and the omnipresence of the criminal justice system in the lives of residents in poor communities of color are well documented.  Now research is starting to reveal the extent to which mass incarceration impacts community health. For example, decades of disparate exposure to incarceration among communities of color has fractured families and exacerbated socioeconomic inequities in ways that have contributed to wider gaps in infant mortality rates between black and white Americans.

Investments are needed in order to stop relying on jails and courts as default healthcare providers.

The criminalization of addiction and mental illness is a core driver of overall health disparities in the criminal justice system. The War on Drugs in essence delegated to criminal justice agencies what should be the responsibility of our community health system. As a result, people coping with serious clinical conditions are gravely overrepresented in correctional facilities. Yet the traditional punitive tactics that corrections departments too frequently turn to—such as solitary confinement—tend to promote the very behavioral problems that lead to incarceration.

There are signs that the social and political climate is changing. U.S. Senators Rand Paul (R-KY) and Cory Booker (D-NJ) have reached across the aisle to work on federal legislation that aims to remove the stigma and legal barriers that prevent millions of Americans with a drug conviction from securing employment and public benefits. Additionally, state officials are pursing legislative and programmatic solutions to trim their prison populations: A recent Vera study found that more than 29 states have amended, scaled down, or repealed laws that mandated lengthy prison sentences for drug and other crimes.

But undoing mass incarceration’s public health crisis will require more than changing sentencing laws and providing people with health insurance. We also need state and local investments to establish a robust network of community health centers and a culturally competent workforce in neighborhoods where mass incarceration is most entrenched.  These investments are needed in order to stop relying on jails and courts as default healthcare providers.

This strategy is being pursued in New York City, where Mayor Bill DeBlasio announced a sweeping plan to prevent people with mental health needs from ending up at Rikers Island when they encounter law enforcement. The plan includes the opening of a Public Health Diversion Center, under the auspices of the New York City Department of Health and Mental Hygiene. It would redirect people to community-based services—in lieu of arrest and prosecution—in communities where health disparities and incarceration are most prevalent. The diversion center would include a 24-hour drop-off location where people accused of low-level crimes could receive health services, withdrawal treatment, case management, overnight shelter, and food.

Finally, we need our political leaders to repeal unjustly harsh policies that deprive individuals who have served their time—and their families—of a fair chance at finding secure housing, entering the labor market, and rising out of poverty.

Momentum is building in the right direction. Ending mass incarceration and restoring the health of our communities is a mission that we all must get behind.




Mapping the Extraordinary Growth in State Prison Populations

This interactive map charts the huge growth in state prison populations in recent decades and its growing impact on state budgets.  Most states’ prison populations are at historic highs; in 36 states, they’ve more than tripled as a share of the overall population since 1978.  Total state corrections spending rose from $20 billion to over $47 billion between 1986 and 2013, after adjusting for inflation.

State economies would be much stronger over time if states invested more in education —which many states have cut in recent years — and other areas that can boost long-term economic growth and less in maintaining extremely high prison populations.  Our recent report discusses how states can reduce incarceration rates and shift the savings to more productive uses.




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 (

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.




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.