Jailed state

Three practical reasons to reduce Hawaiʻi's incarcerated population through investment in community-based restorative justice programs rather than through construction of a new, $1.3 billion prison.

Will Caron

Hawaiʻi has a serious problem when it comes to its prison system. The state’s 40-year-old community correctional centers are dilapidated and horribly overcrowded, and the situation in these jails has now become a liability. Clearly something must be done to reduce crowding in these out-of-date facilities. But there exist two very different ideas of what that something should look like. More broadly, this situation represents a crossroad and we, as a society, have two possible ways to move forward.

The first path is the one state officials appear to be leaning toward: building newer, larger incarceration facilities and, thereby, anchoring our society more firmly to an antiquated and injurious punitive system that is sustained off of societal problems. Over the course of the last 20 years, it’s become clear that the draconian austerity of the prison system incurs a high and multi-faceted cost on the inmate. It’s also, clearly, a strain on overburdened state budgets, and on the taxpayers themselves. On top of this, the prison system has been shown to be less effective at keeping communities safe than what David R. Karp and Todd R. Clear, in their essay Community Justice: A Conceptual Framework (2000), refer to as “community justice” solutions.

These restorative, rather than punitive, solutions seek to heal and restore troubled people, returning them back to society in a condition in which they can be productive and contribute to society. This is the alternative path, and the one advocated for by the Community Justice Coalition, a network of organizations campaigning for criminal justice reform in Hawaiʻi. The Dream Coalition has called for a nationwide Day of Empathy on Wednesday, March 1 for imprisoned persons and their families. At noon, the Community Justice Coalition will hold a rally at the Hawaiʻi State Capitol in solidarity with the movement to reduce massive over-incarceration. The participants plan on visiting their legislators afterward.

But moving Hawaiʻi away from the prison system won’t be easy. Every president since Richard Nixon—who first announced the “War on Drugs” in 1971—has adopted a “tough on crime” stance that is often replicated all the way down to the municipal level of government. Even neighborhood board members often take this stance, especially when it comes to the houseless. This attitude, and its resulting policies, has resulted in the highest incarceration rate in the world. Between 1970 and 2010, the number of people incarcerated in the United States grew by 700 percent. We now incarcerate almost a quarter of the prisoners in the entire world, while representing only 5 percent of the world’s population. At no other point in U.S. history—even when slavery was legal—have so many people been deprived of their liberty. Being “tough on crime,” it seems, is good politics, even if it’s bad policy.

In her 2003 book, Are Prisons Obsolete?, Angela Davis explains that the idea of prisons is so engrained in our societal consciousness that the alternative idea of a justice system without them is impossible to imagine for many people.

Prison abolitionists are dismissed as utopians and idealists whose ideas are at best unrealistic and impracticable, and, at worst, mystifying and foolish. This is a measure of how difficult it is to envision a social order that does not rely on the threat of sequestering people in dreadful places designed to separate them from their communities and families. The prison is considered so “natural” that it is extremely hard to imagine life without it (Davis, 9–10).

While some of our state lawmakers are currently advancing several bills through the legislature that would create a restorative agricultural pilot program at Kūlani Correctional Facility on Hawaiʻi Island (SB613/HB478), would set up a diversion program modeled after Seattle’s Law Enforcement Assisted Diversion Program to steer low-risk offenders away from the criminal justice system (SB108), and would establish a center where youth can obtain guidance, educational programs and other services (HB844), others are simultaneously pushing for legislation (HB1295/HB462) that would establish a new, billion-dollar prison and upgrade additional, smaller correctional facilities around the state.

Investing in Incarceration

State and county politicians have been considering upgrading the 40-year-old Oʻahu Community Correctional Center (OCCC) jail facility (as well as the jails in Kauaʻi, Maui and Hawaiʻi counties) since at least 2013. At the beginning of 2016, Governor Ige’s administration proposed that, instead of just upgrading the OCCC facility, the state should build a brand new jail and asked the legislature to borrow $489 million for the project. That number has since ballooned to $650 million.

Then, in September of 2016, during the public vetting and environmental impact review process for the proposed new jail, Hawaiʻi State Department of Public Safety (DPS) Director Nolan Espinda suggested that, instead of building a new jail, the state should actually build a new prison and move the OCCC jail detainees into the existing Hālawa prison. This would double the cost of the project, putting the revised proposed price tag at an estimated $1.3 billion. Espinda’s stated reasoning was that a new prison could house more inmates—up to 2,600 compared to 1,200—allowing the state to bring the nearly 1,400 local inmates currently housed in a for-profit prison in Arizona (run by CoreCivic, formerly Corrections Corporations of America or CCA) back to Hawaiʻi.

According to a September 2016 memo written by Bob Merce of the legislative HCR 85 Task Force, which was established by the state to study effective incarceration policies to improve Hawaiʻi’s correctional system, the planning that has been done so far by the DPS has been done without input from, or collaboration with, the task force or the broader public.

My position is that whether we have a new jail or not … must be a community decision because jails reflect our community values and principles. The decision should be the result of many sectors of the community coming together to study, discuss and debate the issue, including the judiciary, mental health experts, representatives from the medical school (particularly the Department of Psychiatry), Adult Mental Health Division, Department of Health, Department of Human Services, HPD, Hawaiian organizations, all of the non-profits involved with prisoners (Kat [Brady], Lorenn [Walker], etc.) the paroling authority, key legislators, architects, and people with experience planning jails. We have not gone through this process: the jail is being planned without any kind of meaningful community input. I think this this is a terrible mistake that can only lead to a very bad outcome.

Representative Gregg Takayama is the chair of the House Committee on Public Safety. In an email sent to The Hawaii Independent, Takayama acknowledges that restorative justice programs are important, but insists that new incarceration facilities, in some form, are still necessary:

I think this idea is worth exploring if we consider building a prison that combines both the current Hālawa inmates (1,200) and those currently in Arizona (1,400). Among the benefits would be not spending more than $40 million annually to house inmates out-of-state, improving inmate rehabilitation by enabling family visitations and possibly increasing cost efficiencies by combining both prison facilities.

We need to “right-size” our long-term corrections projections to take into account better use of alternatives to incarceration, this year’s enactment of a higher felony theft threshold (from $300 to $750) and other penal code changes, and possible revisions to our current bail system being considered by the Hawaiʻi judiciary.

We need to enact the Community Court Outreach bill, which died in the final weeks of the last session, which would enable Oʻahu judges to convene outside the courts near homeless populations. This would reduce the large number of homeless and mentally ill who are arrested for minor offenses, fail to appear in court, and then become subjects of arrest warrants, which lead to incarceration. Outreach judges would have the option of immediately ordering offenders to perform community service and avoid jail time, helping reduce our incarcerated population.

We need to increase funding for substance abuse treatment programs. We now spend about $19 million statewide, an amount that fails to meet the needs of the general population or the criminal justice system. We need to better prepare offenders to re-enter society by helping them obtain identification cards before they’re discharged. We’ll try again to enact legislation to provide funding for this.

But even reducing our jail population doesn’t change the fact that Oʻahu Community Correctional Center is inefficiently and unsafely designed, antiquated (one cell block is 80 years old), and lacking appropriate housing for mental health inmates. The situation is as bad, if not worse, at our jails on Kauaʻi, Hawaiʻi Island and Maui.

There are some very good ideas in that email, in particular reforming our harmful bail system and funding substance abuse treatment programs. Bringing home the mostly Hawaiian and Pacific Islander inmates imprisoned in the Arizona CoreCivic prison should also be a priority. But that should be accomplished through a reduction in the overall population of our incarcerated individuals, not through further investment in a costly, ineffective prison-industrial system that does more harm than good, particularly to vulnerable minority populations.

The “tough-on-crime” mentality leftover from the “War on Drugs” has resulted in staggering racial disparities within the criminal justice system. Black individuals are imprisoned at nearly six times the rate of their white counterparts, while Latinos are locked up at nearly double the rate of white counterparts. While these groups engage in drug use, possession and sales at rates comparable to their representation in the general population, people of color are disparately impacted by the system. For example, black individuals comprise 13 percent of the U.S. population and 14 percent of drug users, yet they account for 37 percent of the people arrested for drug offenses and 56 percent of those incarcerated for drug crimes. The 2012 Native Hawaiian Justice Commission (NHJC) report notes a similar situation for Native Hawaiians, who represent less than 10 percent of the population in Hawaiʻi, but comprise almost 40 percent of the population within the criminal justice system.

And while it’s absolutely true that our facilities are disgraceful and falling apart in some cases, and while it is possible that we will always need some form of incarceration facility to host certain violent individuals, Davis points out that relying on jails and prisons to house our exploding incarcerated population becomes a self-fulfilling prophecy, while the underlying causes of crime are not addressed.

The prison … functions ideologically as an abstract site into which undesirables are deposited, relieving us of the responsibility of thinking about the real issues afflicting those communities from which prisoners are drawn in such disproportionate numbers … It relieves us of the responsibility of seriously engaging with the problems of our society, especially those produced by racism and, increasingly, global capitalism … Mass imprisonment generates profits as it devours social wealth, and thus it tends to reproduce the very conditions that lead people to prison (Davis, 16–17).

Beyond the moral argument against prisons, there are three very practical reasons to spend that $1.3 billion on community-based restorative justice programs instead of a new prison, and they each come with 20 years worth of data to support them.

1. Incarceration is Costly for Communities and Taxpayers

The past 45 years of criminal justice policymaking have been characterized by over-criminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building. These policies have come at a great expense to taxpayers. But budget short-falls of historic proportions have finally prompted some states across the country to realize that less punitive approaches to criminal justice not only make more fiscal sense but also better protect our communities.

The Pew Center on the States commissioned One in 31: The Long Reach of American Corrections in March, 2009. The report examines the scale and cost of prison, jail, probation and parole in each of the 50 states, and provides a blueprint for states to cut both crime and spending by reallocating prison expenses to fund stronger supervision of offenders within the community.

In 2008, state corrections costs topped $50 billion annually and consumed one in every 15 discretionary dollars. “The remarkable rise in corrections spending wasn’t fate or even the natural consequence of spikes in crime. It was the result of state policy choices that sent more people to prison and kept them there longer. The sentencing and release laws passed in the 1980s and 1990s put so many more people behind bars that, in 2008, the incarcerated population reached 2.3 million and, for the first time, one in 100 adults was in prison or jail,” write the authors.

The escalation of the prison population has been astonishing, but it hasn’t been the largest area of growth within the criminal justice system. That would be probation and parole—the sentenced offenders who are not behind bars. With far less notice, the number of people on probation or parole has skyrocketed to more than 5 million, up from 1.6 million just 30 years ago. This means that 1 in 45 adults in the United States is now under criminal justice supervision in the community and that, combined with those in prison and jail, a stunning 1 in every 31 adults (3.2 percent) is under some form of correctional control. The rates are drastically elevated for men (1 in 18) and African Americans (1 in 11) and are even higher in some high-crime, inner-city neighborhoods.

While probation and parole—the dominant community corrections programs—have had larger population growth than prisons, they have had far smaller budget growth. Looking at a handful of states that were able to provide long-term spending figures, seven times as many new dollars went to prisons as went to probation and parole. And while fewer than 1 in 3 offenders is behind bars, almost 9 out of 10 corrections dollars are spent on prisons. Incarceration understandably costs more. Prisons must house, feed and provide medical care to prisoners. But the price gap is nevertheless staggering: on average, the daily cost of supervising a probationer in fiscal 2008 was $3.42; the average daily cost of a prison inmate, $78.95, is more than 20 times as high.

Community corrections agencies have been further strained by a host of added responsibilities. On top of crushing caseloads, new laws (such as statutes mandating lifetime supervision of some offenders) and expanded roles like sophisticated cyber-crime detection have created new obligations for departments already stretched thin. These expanded duties are a partial recognition of the role that community corrections plays in protecting public safety, but they have come without sufficient investments in staff, equipment and other support.

Given the current budget climate, we have a—perhaps—unprecedented opportunity for reform on the one hand, and a costly entrenchment in a failing system on the other. Policy leaders must see this as a chance to retool the sentencing and corrections systems in our state. With stronger community corrections, we wouldn’t need to lock up so many people at such a great cost. By redirecting a portion of the dollars currently spent on imprisoning the lowest-risk inmates, we could significantly increase the intensity and quality of supervision and services directed at the same type of offenders in the community instead of behind bars.

As a final note, in The High Budgetary Cost of Incarceration (June, 2010), authors John Schmitt, Kris Warner and Sarika Gupta of the Center for Economic and Policy Research write:

The United States currently incarcerates a higher share of its population than any other country in the world. We calculate that a reduction in incarceration rates just to the level we had in 1993 (which was already high by historical standards) would lower correctional expenditures by $16.9 billion per year, with the large majority of these savings accruing to financially squeezed state and local governments. As a group, state governments could save $7.6 billion, while local governments could save $7.2 billion. These cost savings could be realized through a reduction by one-half in the incarceration rate of exclusively non-violent offenders, who now make up over 60 percent of the prison and jail population. A review of the extensive research on incarceration and crime suggests that these savings could be achieved without any appreciable deterioration in public safety.

2. Incarceration is Ineffective

Recidivism refers to a person’s relapse into criminal behavior, often after the person has received punitive sanctions for a previous crime. The economic and social impacts of incarceration, in particular, have been shown in multiple studies to be high factors in contributing to recidivism.

A June 2012 report from the National Institute of Justice examines the barriers that criminal records present to securing jobs, housing and benefits. These barriers heighten the difficulty of reentry into society for prisoners after they are released. The costs of recidivism are high. As a result, government agencies should be focused on the reentry population with initiatives aimed to improve outcomes in health, housing, education, employment and other areas.

Another report written by Bruce Western and Becky Pettit for the Pew Charitable Trusts, Collateral Costs: Incarceration’s Impact on Economic Mobility (September, 2010), looks at the economic impacts of incarceration that lead to high rates of recidivism. “A less explored fiscal implication of incarceration is its impact on former inmates’ economic opportunity and mobility. Incarceration affects an inmate’s path to prosperity,” write the authors. Collateral Costs quantifies the size of that effect, not only on offenders but on their families and children, and the results are dramatic. Again, the NHJC report confirms similar findings with Native Hawaiian families, who have high rates of multi-generational incarceration.

In September 2012, The Council of State Governments (CSG) Justice Center’s National Reentry Resource Center (NRRC) released a policy brief highlighting a number of states that have experienced significant reductions in recidivism. The states profiled in the report show significant declines in their three-year recidivism rates based on data tracking individuals released from prison in 2005–07. Texas and Ohio reported reductions of 11 percent, while the Kansas rate fell by 15 percent and Michigan’s rate dropped by 18 percent.

In Ohio, state policymakers standardized the use of a validated risk-assessment instrument to focus limited treatment and supervision resources on those individuals assessed at the highest risk for reoffending. In Kansas, state leaders awarded performance-based grants to community correction agencies, partnered with local communities where recidivism rates were highest to improve post-release supervision, and enhanced housing and workforce development services to better meet the needs of people coming out of prison. Michigan officials invested heavily in the state’s Prisoner Reentry Program, prioritizing funding for housing, employment and other transition support services in order to provide the most effective community-based programming for released individuals.

3. Incarceration Doesn’t Make Us Safer

In Everyone Pays: A Social Cost Analysis of Incarcerating Parents for Drug Offenses in Hawai‘i (June, 2009), authors Thomas E. Lengyel and Marilyn Brown write:

This study takes as its primary goal the construction of an economic foundation for corrections policy in the State of Hawaiʻi. Up to this point, Hawaiʻi’s citizens, elected representatives and state administrators have not had access to a serious accounting of the costs of putting their fellow citizens in prison. These costs and benefits of prison time are much more diverse and affect far more people than has been portrayed in the local media, whose reports often focus narrowly on the cost of the prison bed. As the title of this work implies, costs and benefits spread across society, and the costs for the state, for the prisoner, and for the prisoner’s family far outweigh the benefits. We explore this subject using as a case study the cohort of drug offenders released from Hawaiʻi’s prisons in fiscal year 2006.

Incarceration is damaging to the men and women who are placed into the prison system. It seems like an obvious and inane point to make, after all isn’t that part of the point of a punitive system? Some offenders may commit crimes so heinous that we deem them unfit to ever reenter society. But the majority of prisoners will be released at some point. How they behave upon reentry into society is based largely on whether their experience was punitive or rehabilitative.

There are a host of factors involved in determining the best possible solution to reduce crime, maintain safe communities and help at-risk populations avoid incarceration and remain productive members of of society. But one common theme that emerges from the bulk of the research being done in this area of study is that simply locking people up, and offering no programs to help with prevalent public health issues, educational issues and issues with transitioning back into society does more harm than good in the long run.

“American punishment today is degrading, indecent and harsher than deserved despite a Constitution designed to protect people from cruel and unusual punishment,” writes researcher Eva Nilsen in a Boston University School of Law paper on public law and legal theory. “Unfortunately, the U.S. Supreme Court’s response to the increasing inhumanity of contemporary punishment has been to reduce its Eighth Amendment jurisprudence to tidy categories, legal fictions and hollow phrases. Absent from the discourse is any acknowledgement of the actual day-to-day experience facing the convicted person, or any suggestion that, although punishments can be degrading, they need not be. The case for treating a convicted person with respect for his human dignity, and for constitutional scrutiny of punishment as it is actually experienced, is rarely made.”

The first part of Nilsen’s paper demonstrates that sentences are longer and harsher, prison conditions more degrading and dangerous, and post-release reintegration so severely hobbled by numerous barriers, that incarceration essentially guarantees the existence of a permanent underclass. The second part explains how the Court’s narrow and formalistic reading of the Eighth Amendment has produced a profound legal and moral blindness to the constitutional infirmities these punishments present. In the third part, the paper suggests avenues to more robust conceptions of human dignity and decent treatment that may still be found in the Constitution and in emerging global norms.

In the Sentencing Projects’ 2014 report, Fewer Prisoners, Less Crime: A Tale of Three States the authors studied the effects of prison reductions in California, New Jersey and New York. While the rest of the country increased its prison population between 1999 and 2012 by roughly 10 percent, both New York and New Jersey reduced prison populations by 26 percent. Similarly, between 2006 and 2012, California reduced its prison population by 23 percent. During these periods of decarceration, violent crime rates fell at a greater rate in these states than in the rest of the country; in New York and New Jersey, the rate declined by 31 and 30 percent, respectively, and California’s rate declined by 21 percent, outpacing the national rate of violent crime reduction.

“These prison population reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay,” write the authors. “The experiences of these states reinforce that criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations. They also demonstrate that it is possible to substantially reduce prison populations without harming public safety.”

“Too often, lawmakers have devised criminal justice policy in emotional response to a highly publicized crime or perception of a crime trend,” states a 2011 report by the American Civil Liberties Union (ACLU). “This misguided lawmaking has resulted in both overly punitive laws that cast too wide a net, and inhumanely long prison sentences that have little to do with maintaining public safety.”

The ACLU study finds that, “There are simply too many people in prison who do not need to be there, and whose long imprisonment does not serve society. Putting an individual behind bars should be an option of last resort, rather than a first response to social problems. Incarceration is often not necessary and can be detrimental to the widely shared goal of keeping our communities safe.”

The Vera Institute of Justice noted in its February 2015 report, Incarceration’s Front Door: The Misuse of Jails In America, that the prevalence of people with mental illness in jail is at odds with the design, operation, and resources in most facilities:

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. The prevalence of people with mental illness in jail is at odds with the design, operation and resources in most jails. According to the latest available data, 83 percent of jail inmates with mental illness did not receive mental health care after admission. The lack of treatment in a chaotic 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.

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.

In 2007, the U.S. Department of Justice notified then governor Linda Lingle that the treatment of the mentally ill at OCCC was in violation of the U.S. Constitution in multiple respects including: (1) detainees with mental illness were subjected to harmful methods of isolation, seclusion and restraint; (2) the OCCC staff failed to provide mentally ill prisoners with adequate treatment, therapy and services; (3) the OCCC staff failed to adequately monitor detainees in isolation or seclusion, including those on suicide watch; (4) OCCC failed to employ sufficient mental health staff and clinical structures to adequately care for detainees; (5) OCCC did not have adequate policies, procedures and quality assurance structures in place to direct the delivery of mental health services; and (6) OCCC failed to ensure adequate planning was done when detainees were discharged from the facility. (Letter from Wan J. Kim, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice to the Honorable Linda Lingle, Governor of Hawaiʻi, March 14, 2007.)

The authors of Mindful of the Consequences: How Improving the Mental Health of D.C.’s Youth Benefits the District (July, 2011) write,“The power of good mental health is underestimated in maintaining safety and well-being within D.C.’s communities. But, as our understanding of brain science expands, the connections between public safety and health promotion are increasingly clear. Historically, the role of mental health as a crucial component of overall wellness and health has been misunderstood and often forgotten. This is equally true when it comes to understanding how untreated mental health problems lead youth into the juvenile justice system.”

The report finds that mental health problems in children are often perceived in extremes—as a severe condition requiring hospitalization and medication or as a behavioral issue to be addressed through increased discipline or confinement in a correctional facility. This misunderstanding of mental health not only prevents children and youth from getting the preventive and therapeutic services they need, but it allows ineffective public safety strategies to linger in our public policies and legislation. A “tough on crime” approach actually undermines public safety because it does not address the illness that’s causing or contributing to the delinquency or crime.

“However, youth receiving the attention they need to improve their mental health will be enabled to overcome challenges and reach their potential within their schools, homes and communities,” write the authors. “Youth with good mental health will become vital members of our communities, as they are psychologically and physically able to contribute their skills and talents to the betterment of society.”

In Misplaced Priorities: Over Incarcerate, Under Educate (May, 2011, 2nd ed.), the NAACP Smart and Safe Campaign examines how excessive spending on incarceration undermines educational opportunities and public safety in communities. The report finds that, over the last two decades, as the criminal justice system came to assume a larger proportion of state discretionary dollars nationwide, state spending on prisons grew at six times the rate of state spending on higher education. In 2009, as the nation plummeted into the deepest recession in 30 years, funding for K–12 and higher education declined; however, in that same year, 33 states spent a larger proportion of their discretionary dollars on prisons than they had the year before.

For three cities—Los Angeles, Philadelphia and Houston—the research team examined the spatial relationship between “high-incarceration communities” and “low-performing schools” (as measured by mathematics proficiency). By grouping five different ranges of incarceration from the two lowest to the two highest, the authors show that high- and low-performing schools tend to be clustered in communities with correspondingly high and low rates of incarceration. Once again, the NHJC report confirms similar findings with Native Hawaiian youth populations.

A Different Path Forward

“Community justice broadly refers to all variants of crime prevention and justice activities that explicitly include the community in their processes and set the enhancement of community quality of life as a goal,” write Karp and Clear in their essay. “Recent initiatives include community crime prevention, community policing, community defense, community prosecution, community courts and restorative justice sanctioning systems. These approaches share a common core in that they address community-level outcomes by focusing on short-and long-term problem solving, restoring victims and communities, strengthening normative standards and effectively reintegrating offenders.”

Reform efforts in several states have proven that mass incarceration is not necessary to protect public safety. States like New York, which depopulated its prisons by 20 percent from 1999 to 2009, and Texas, which has stabilized its prison population growth since 2007, are presently experiencing the lowest state crime rates in decades. (See also: a 2007 report by the JFA Institute, entitled Unlocking America: Why and how to reduce America’s prison population.)

Recommendations for legislative and administrative reforms that we can and should implement to reduce our incarcerated population and corrections budget, while keeping our communities safe, cover: systemic reforms to the criminal justice apparatus as a whole; “front-end” reforms that focus on reducing the number of people entering jails and prisons; and “back-end” reforms that increase the number of people exiting and staying out of prison. These recommendations are by no means exhaustive, but aim to provide advocates and lawmakers with a few key evidence-based and politically-tested reforms from which to craft a state-specific legislative agenda for criminal justice reform.

In 2013, 35 states passed at least 85 bills to change some aspect of how their criminal justice systems address sentencing and corrections. In reviewing this legislative activity, the Vera Institute of Justice found that policy changes have focused mainly on the following five areas: reducing prison populations and costs; expanding or strengthening community-based corrections; implementing risk and needs assessments; supporting offender reentry into the community; and making better informed criminal justice policy through data-driven research and analysis.

“These trends have complex political and budgetary roots, including growing public awareness of how many of those incarcerated are there for nonviolent, often drug-related crimes, and how many are debilitated by mental illness, drug dependency, illiteracy or under-education, developmental delays, or trauma and abuse,” write the authors. “At a time of significantly lower rates of violent crime, public awareness of the ineffectiveness of prison in ameliorating or responding to these problems has grown together with the knowledge of what can be accomplished with community-based approaches that also hold offenders accountable.”

Seattle, Washington, San Francisco, California and Santa Fe, New Mexico have implemented Law Enforcement Assisted Diversion (LEAD) programs that allow law enforcement officers to divert low-level drug and prostitution offenders into community-based treatment and support services including housing, healthcare, job training, treatment and mental health support, instead of processing them through traditional criminal justice system avenues. By diverting eligible individuals to services, LEAD is improving public safety and reducing the criminal behavior (recidivism) of people who participate in the program. The LEAD program was developed in King County Washington (Seattle) by bringing together a diverse group of stakeholders including prosecutors, city attorneys, the police, the mayor’s office, the Washington State Department of Corrections, public defenders, the ACLU of Washington and members of the community. The development and implementation of the program cost Seattle taxpayers nothing: it was developed and implemented with funding from private foundations.

LEAD is not only saving on jail costs, studies have shown that over a five year period (October 2009 to July 2015) participants were 58 percent less likely than control group participants to be rearrested. Other studies have shown that LEAD participants were 50 percent more likely to have shelter, 46 percent more likely to be on an employment continuum (either vocational training or employed in the legitimate market) and 33 percent more likely to have income/benefits.

To address problems with housing the mentally ill in prisons, and to save money, cities and countries across the country diverting mentally ill persons to alternative facilities such as shelters and hospitals where they can be cared for by mental health professionals and where, in many cases, the cost of care is paid by private insurance or Medicaid.

For example, Los Angeles County pairs law enforcement officers with mental health clinicians to respond to 911 calls involving mentally ill citizens. Team members are trained to identify, evaluate and locate appropriate placement for the mentally ill citizen. Placements can include shelters, medical facilities or jail, if necessary. The teams are also trained to determine if the person has Medicaid or private insurance, enabling them to pinpoint the appropriate hospital that would accept the person’s medical benefit. Of the individuals diverted, about one-third are placed in county hospitals, another one-third are placed in private hospitals, and the rest are transported to community providers. In FY 2001–2, the law enforcement-mental health teams responded to 7,121 calls for intervention. Of these, only 107 resulted in arrest.

Tallahassee, Florida (Leon County) has created a program that gives police officers discretion to divert first time misdemeanor offenders to a non-profit behavioral health agency in lieu making an arrest. An offender can refuse diversion and opt for their day in court but, if diversion is accepted, the offender enters an intervention program operated by a non-profit behavioral health agency. During intake, each person receives a behavioral health assessment and is screened for drug use. Based on the results, an individualized intervention plan is developed. The participant then has 90 days to complete the intervention plan, as well as a mandatory 25 hours of community service. Participants pay the behavioral health company $350 for the intervention services. This is approximately the same cost as court fines and fees if they were to be criminally prosecuted. Payment plans and waivers are available for those who cannot afford the pre-arrest diversion fee. No one is denied participation for the inability to pay. Failure in the program results in the participant being arrested and prosecuted for the original offense.

Since the program started in March of 2013, law enforcement officers with the Tallahassee Police Department and the Leon County Sheriff’s Office have diverted over 1,000 offenders. Of the nearly 80 percent of diverted offenders who successfully complete the program, only 6 percent were subsequently rearrested. While there is little formal research related to recidivism for first-time misdemeanants, prior to the diversion program the estimated recidivism rate for this category of offenders in Tallahassee/Leon County was 40 percent.

Another factor contributing to overcrowded prisons is the bail system, which contributes to, creates and exacerbates injustices within the prison system. Bail Fail is part of a trio of Justice Policy Institute reports from 2012 on the problems with the bail system, with recommendations on alternative systems. (the other two are For better or for profit: how the bail bonding industry stands in the way of fair and effective pretrial justice and Bailing on Baltimore: Voices from the Front Lines of the Justice System

“The vaguely understood pretrial process of bail costs the taxpayers of the United States billions of dollars and infringes on the liberty and rights of millions of Americans each year. Fortunately, there are alternatives that states and localities can pursue that have been shown to effectively promote safety, deliver justice, and reduce the number of people in jails. The use of money bail is among the primary drivers of growth in our jail populations,” write the authors.

The report points out that the ability to pay money bail is neither an indicator of a person’s guilt nor an indicator of risk in release. Additionally, pretrial detention has a documented negative impact on pretrial and case outcomes: Those held pretrial are more likely to be convicted of a felony, receive a sentence of incarceration and be sentenced longer than those released pretrial. Additionally, people in pretrial detention may lose their job, lose their housing, lose their health insurance and their families are often adversely impacted as well.

Due to disparities in the pretrial process, African American and Latino populations (and, in Hawaiʻi, Native Hawaiian and Pacific Islander populations) are more impacted by the use of money bail. “Awareness of how this may happen at the bail stage is crucial for reducing disparities due to pretrial decisions, particularly as there is little oversight of decision making processes at this phase,” write the authors. “An inability to pay the money bail may coerce people to plead guilty so that they can get out of jail sooner despite being innocent … A 2012 study suggested that in an effort to avoid the ominous maximum penalties of a potential conviction in an inherently coercive and unfamiliar system, more than 50 percent of innocent defendants pled guilty to get a lower sentence rather than risk a conviction, albeit faulty, that would lead to the maximum penalty.”

On March 14, 2016, the Civil Rights Division of the U.S. Department of Justice called for an end to “the criminalization of poverty” and, in an open letter to lawyers and judges, said that to safeguard the principles of equal protection and due process, courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.” The Justice Department also urged states to “consider transitioning from a system based on secured monetary bail alone to one grounded in objective risk assessments by pretrial experts.”

Some states have already been exploring the bail alternatives called for by the Justice Department. New York City is reducing its jail population by giving judges the option of allowing defendants charged with misdemeanors and low-level, non-violent felonies to be supervised though daily check-ins, text-message reminders and through connecting them with drug or behavioral therapy. This program not only reduces the jail population, it allows defendants (who are presumed innocent) to live at home and keep their jobs while their cases wind through the courts. (Associated Press, “NYC to offer bail alternatives to keep low-risk suspects out of Rikers,” New York Post July 8, 2015.)

Recommendations include eliminating money bail and banning for-profit bail bonding companies; expanding community education programs (such as Neighborhood Defendant Rights programs) that inform people in the community about how to navigate the pretrial process; using citations and summons to reduce the number of people being arrested and processed through jails; and better utilizing technology to improve the pretrial processes (sending text message reminders about court appointments, for example, which has been very effective in New York City).

Establishing a suite of community programs aimed at achieving a restorative justice system is the only reasonable, conscionable strategy to take in reducing the population of our prisons. The programs must include “job and living wage programs, alternatives to the disestablished welfare program, community-based recreation, and many more” (111), writes Davis.

“Positing decarceration as our overarching strategy, we [should] try to envision a continuum of alternatives to imprisonment—demilitarization of schools, revitalization of education at all levels, a health system that provides free physical and mental care to all, and a justice system based on reparation and reconciliation rather than retribution and vengeance” (Davis, 107).