As we explained in a report earlier this month, every U.S. state punishes far more people than is remotely necessary, not just with long prison terms but with long stints on probation and parole. 42% of prison admissions nationwide are for violations of supervision, meaning that these supposed “alternatives” to mass incarceration are major drivers of the system.
While radical reforms to probation and parole are warranted, a handful of modest reforms have the potential to quickly shrink the number of people under supervision and even to release significant numbers of people from incarceration. This morning, the Prison Policy Initiative and the Katal Center for Equity, Health and Justice released a report called Excessive, Unjust, and Expensive: Fixing Connecticut’s Probation and Parole Problems that lays out this winnable, high-impact reform package — one that could be replicated in many other states.
We published this report to support advocates on the ground in Connecticut who, at this moment, are pushing lawmakers to implement a reform package that could make the state’s parole and probation systems significantly fairer. Advocates working to implement similar reforms in other states may find our report helpful as they marshal arguments in support of change.
Our report recommends that states — like Connecticut — that want to implement these reforms take the following steps:
Restrict the use of incarceration as a punishment for technical violations of probation and parole. In Connecticut, as in most states, hundreds of people behind bars are serving time for noncriminal acts that happened to violate one of the (often burdensome) conditions of their supervision. The authors find that Connecticut’s probation system imposes up to 17 different rules on supervisees, making it difficult to impossible to avoid slipping up. Incarcerating so many people for noncriminal behaviors is not just draconian; it’s also expensive, costing taxpayers about $1,200 per week per person.
Replace automatic incarceration for alleged violations with a written notice to appear in court. Correctional facilities are full not only of people serving time for supervision violations, but people accused of such violations, who frequently end up behind bars for weeks as they await hearings. The new report explains that of the 100 people on parole locked up every month for alleged parole violations, many are likely put there for no good reason at all: Approximately 1/3 ultimately have their parole reinstated with no finding of wrongdoing. The authors estimate that reforming this draconian system — by serving people accused of violations a notice to appear in court, rather than throwing them behind bars — would lead to at least 6,000 fewer people being arrested over the next 2 years.
Apply earned-time credit to supervision sentences. At least nine states currently allow people on probation and/or parole to shorten their supervision sentences by demonstrating good behavior, but Connecticut has no such system. “Earned time” incentivizes success under supervision and reduces caseloads, allowing probation and parole staff to focus on people who have the greatest needs. In Connecticut, the authors find that implementing an earned-time system similar to New York’s, and allocating time credits to people currently on supervision retroactively, would get thousands of people off of supervision immediately.
Bolster due process. In Connecticut — and across the country — many people charged with probation or parole violations are unaware of and do not exercise their rights. Those include, in Connecticut, the right to a lawyer at parole and probation revocation hearings and the right to a preliminary hearing (a court appearance in which someone can dispute a parole officer’s decision to detain them). In fact, in an observation of 49 parole revocation hearings in Connecticut in 2015, zero defendants appeared with state-provided counsel. Without knowledge of their rights, people are more likely to have their probation or parole revoked and end up behind bars. The report urges Connecticut to communicate and protect defendants’ right to counsel and preliminary hearings, to speed up the process between someone’s preliminary hearing and their disposition, and to guarantee that hearings take place in a neutral, public location (rather than a jail).
The report also includes a section explaining the significant benefits New York State has seen from implementing similar reforms through its Less Is More Act, illustrating the potential gains for other states considering reforms:
In just the first few months after its enactment, Less Is More led to nearly 2,000 people on parole who had been incarcerated for noncriminal technical violations being released from jails and prisons.
New York was able to close six state prisons in 2021, partly because lawmakers (accurately) anticipated a drop in incarceration due to fewer people being incarcerated for technical violations.
In less than two years, Less Is More cut the state parole population by 40% by allowing people on supervision who had followed the rules to earn time credits that led to their discharge.
All too often, the report explains, people on probation or parole have their lives disrupted by allegations of misbehavior, leading to lost jobs, lost housing, and broken or strained family ties. Many of these individuals should not have even been under supervision in the first place. And because incarceration is expensive, taxpayers are paying a heavy price for a system that doles out punishment much more than it offers support. Excessive, Unjust and Expensive lays out a path to reining in these draconian and costly aspects of supervision, proposing policies that could immediately impact thousands of people in Connecticut — or virtually any other state.
Shadowy “civil commitment” facilities actually foster the traumatic and violent conditions that they are supposed to prevent.
by Emma Peyton Williams,
May 18, 2023
As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men,1 who have been convicted of sex offenses in prison-like “civil commitment”2 facilities beyond the terms of their criminal sentence. Around the turn of the millennium, 20 states,3 Washington D.C., and the federal government passed “Sexually Violent Persons”4 legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.” In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence. In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice. This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional. The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.
Two critiques of “civil commitment”
Some advocates call civil commitment facilities “shadow prisons,”5 in part because of how little news coverage they receive and how murky their practices are. In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization. But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.6 This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic.
Similarly, Rushville is not held to the same reporting requirements as DOC facilities, so gathering data about people’s movement in and out of the facility is only possible by filing an open records request. Reportedly, the Office of Justice Programs intends to begin collecting data about indefinite post-sentence ‘civil’ confinements in June of 2023. Until that happens, it’s only possible to get aggregated counts of how many people are civilly committed — nothing like the individual-level information prison systems are expected to provide in the service of transparency and accountability. This is true across the U.S., as civil commitment facilities are housed under different agencies from state to state, which makes it exceedingly difficult to measure the full scope of these systems on a national level. As a result, estimates about how many people are currently civilly committed vary from 5,000 to over 10,000 people.7 Increased accountability and oversight must be chief among efforts to address this broken turn-of-the-millennium policy trend.
A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.” Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime,8 or preventative detention for a theoretical future crime that has not occurred. Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.
Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts. The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.” But neither “risk assessment” nor “progress through treatment” are objective measures. In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.
New data: A survey of individuals held in a “civil commitment” facility
A recent report from Illinois (which I co-authored) goes beyond the numbers and reports that for many, civil commitment seems like a life sentence. This 2022 report, based on a 2019 study of residents at Rushville Treatment and Detention Facility (one of Illinois’ two civil commitment facilities), exposed demographic disparities, discrimination and abuses inside, and flaws with the broader framework of civil commitment. Like the broader carceral system, civil commitment disproportionately impacts Black and Brown people. In particular, the Illinois report noted an overrepresentation of Black, Indigenous, and multiracial people at Rushville. This is in line with the findings of the Williams Institute’s 2020 report, which found that, on average, Black people were detained in civil commitment facilities at twice the rate of white people in the states studied.
Biased admission criteria lead to disproportionate consequences for select groups
Further, the overrepresentation of LGBTQ+ and disabled people in these facilities reflects obvious biases that are “baked into” the civil commitment decision-making process. Many states use risk assessment evaluations to assess whether or not one should be civilly committed. These actuarial tools use outcome data from previously incarcerated people and conclude that, because past studies found groups with specific characteristics more likely to re-offend, individuals that match those criteria must be continually confined. Risk assessment tools are generally problematic and frequently make incorrect predictions. Chicago attorney Daniel Coyne says that in sex offense cases, risk assessment tools are 58% accurate, or “not much better than a coin toss.”
Illinois and many other states use the Static-99/99R, which predicts individuals’ risk using data about groups that come from overwhelmingly unpublished studies. This risk assessment tool is notably homophobic, as it assigns a point (and thus, a higher risk value) to those who have a “same-sex victim.”9 The Williams Institute writes:
In addition to normalizing violence against women, this a priori assigns gay, bisexual, and MSM [men who have sex with men], who are more likely to have a male victim, a higher score, marking them as more dangerous than men who have female victims regardless of any other characteristics of the offense.
The evaluation also considers those who have never lived with a romantic partner to be at higher risk of reoffending, which means that LGBTQ+ people who may not be able to safely live with a partner in a homophobic area and young people who may not have had the opportunity to live with a partner yet would receive higher scores. Accordingly, representation of LGBTQ+ people in Rushville was drastically higher than in the general public:
Criteria for detention usually include diagnosis with a “mental abnormality,” in particular, a personality disorder or a “paraphilic” disorder that indicates “atypical sexual interests.” “Paraphilic” is a problematic category that relies heavily on scrutinizing and pathologizing human sexuality.10 Further, the act of civilly committing people to a “treatment” facility implies that there is a mental health issue or “nonnormative” sexual behavior to be treated and/or cured. This is especially alarming given that the American Psychiatric Association completely disavows the practice, saying, “Sexual predator commitment laws represent a serious assault on the integrity of psychiatry.”11
Since having a “mental abnormality” is a criterion for admission, measuring the overrepresentation of disabled people in these facilities is challenging. By the logic of civil commitment, 100% of people inside have a psychiatric disability. In the Illinois report, 26% of Rushville respondents self-identified as having a disability, compared with 21% of the Illinois population. Low levels of educational attainment (i.e., having a high school degree or less) were also very high, at 48%. Anecdotally, survey respondents reported that many of their peers inside could not complete the survey because they were illiterate or had cognitive impairments that prevented them from reading and filling out a paper questionnaire, so disabled respondents’ voices are likely underrepresented.
Indefinite and punitive detention with no evidence of efficacy
Agencies that control civil commitment often insist that civil commitment is treatment, not prison. Texas Civil Commitment Center staff even went so far as to instruct detainees “to call their living quarters ‘rooms,’ not prison cells.” But advocates question whether or not civil commitment can be considered therapeutic. Can forced confinement inside facilities with high rates of violence, controlled by staff who use the same punitive measures that are common inside prisons, ever be healing?
Even if we buy into the myth that civil commitment facilities provide the treatment they claim to offer, there is minimal evidence that this supposed treatment works, and moving through treatment tiers is difficult, if not impossible. Even staff inside report that they receive pushback when trying to advance people toward release. One review from a past employee of Rushville’s contracted mental health care service, Liberty Healthcare Corporation, reported, “The hardest part of the job is fighting for residents who should be on conditional release and dealing with the outcome when refusing to act in unethical ways.” Progress through treatment is dependent on a regularly fluctuating staff, often made up of graduate students who are finishing their residencies and then moving on to another facility. Residents inside report being demoted to earlier tiers of treatment by new residents who disagreed with previous staff members’ assertions.
With little transparency about or consistent standards regarding how to progress through treatment, many people inside say that civil commitment feels like a de facto life sentence. At Rushville, the average length of detention was 9.5 years and counting. According to a 2020 FOIA response from the Illinois Department of Human Services, more than twice as many people had died inside than had ever been released. Similar circumstances have been reported from Texas, where only five men were released in the facility’s first two and a half years of operation, four of whom were sent to medical facilities where they died shortly thereafter. A 2020 article about Rushville included the following findings:
Slightly more than half of the total population [has] been held for 10 years or more. Fifty-one people in Rushville have been held in civil commitment for 20 years or more, and 12 have been in civil commitment for 22 or more years, meaning they’ve been in civil commitment since the statute was implemented in 1998.
People inside reinforce these findings. One Illinois survey respondent reported, “This is a life sentence after the completion of a criminal sentence. We are treated worse [than] prisoners. This is a sentence of death by incarceration. Not a revolving door program.” Indefinite sentences that are contingent on progress through treatment that feels unhelpful and opaque contribute to distress inside. This distress can result in violence and a hateful culture, between detainees and from staff to detainees. Three-quarters of detainees report being discriminated against by staff, and one-quarter report being physically harmed by staff. 8% of detainees said they were sexually harmed by staff. Anecdotally, respondents shared a number of stories about experiencing physical or sexual harm from other residents. Though civil commitment facilities are tasked with “treating” sexual violence, they actually create physical environments that foster sexual, physical, and emotional violence.
Civil commitment facilities are not only legally and ethically dubious, they also fail to deliver on the very objectives that justified their creation. Even still, the trend toward preventative and “therapeutic” forms of detention that are fueled by biased and error-filled algorithms and risk assessment tools is growing. As one reporter from Texas notes:
Critics of private prisons see in the Texas Civil Commitment Center the disturbing new evolution of an industry. As state and federal inmate populations have leveled off, private prison spinoffs and acquisitions in recent years have led to what watchdogs call a growing “treatment industrial complex,” a move by for-profit prison contractors to take over publicly funded facilities that lie somewhere at the intersection of incarceration and therapy.
In an era where lawmakers frequently champion “evidence-based” punishment, the public must remain vigilant in questioning whether these practices actually accomplish their supposed goals. Do they reduce the mass incarceration of hyper-policed communities? Do they minimize the ongoing harms of the criminal legal system? Do they reduce the number of people entering prisons or increase the number of people exiting them? In the case of civil commitment, the answer to all of these questions is no.
Though under-resourced, the movement to address harmful civil commitment policies is longstanding. A variety of advocates12 are leading campaigns to address ineffective sex offense policies across the U.S. (including the sex offender registry system). Other organizations support ongoing litigation campaigns like the one that was considered by the U.S. Supreme Court in Minnesota. Advocates inside and outside agree that civil commitment facilities fail to deliver meaningful safety and healing.
This data was provided by the Sex Offender Civil Commitment Program Network. ↩
We use the term “civil commitment” throughout because it has widespread name recognition, and because it accurately characterizes the civil legal system’s commitment of individuals to various facilities, but as we will discuss further, advocates often use more descriptive terms such as “shadow prisons” and “pre-crime preventative detention.” ↩
These states include Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia, Washington, and Wisconsin. ↩
We reference these laws by name so that they are easier for readers who want to look up the statute to find, but do not endorse using this language to refer to people. ↩
The Sex Offender Civil Commitment Program Network requests aggregate numbers from each state regularly — and these annual survey counts are what we use in our Whole Pie reports — but some advocates believe this is an underestimation because how one defines who is civilly committed varies between reporting agencies. For example, should those on “conditional release,” who are not confined but still subjected to stipulations of their state’s Sexually Violent Persons Act, be considered free? ↩
From the Williams Institute report: “Critics have also noted the potential misuse of paraphilic disorders, a group of psychiatric diagnoses related to ‘atypical sexual interest.’ This category is extremely broad and includes pedophilic disorder as well as consensual sexual ‘kinky’ behaviors such as sexual masochism and sadism. The critique is that such diagnoses can be used [as] justification for civil commitment for a wide range of offenders. Paraphilic disorders diagnoses are so broad that they could be used to characterize as mentally ill many practitioners of kink, bondage, sadomasochism, or any sexual practice perceived to be deviant. This may have important implications for gay and bisexual men and [men who have sex with men], whose sexual cultures may be viewed as kinky or otherwise nonnormative due to stigma and prejudice” (pages 2-3). ↩
We’re excited to announce that Brian Nam-Sonenstein has joined our team as a Senior Editor and Researcher. In this role, he’ll research and write briefings and reports, and provide editing support to other members of our research team.
Before joining Prison Policy Initiative, Brian worked as a columnist and reporter for news outlets including the Portland Phoenix, Marijuana Moment, and Shadowproof, where he is a co-founder and publishing editor. He also organized the Marvel Cooke Fellowship to produce reporting by incarcerated writers. Brian is a co-host of the Beyond Prisons podcast and has been actively producing media for over a decade on issues ranging from drug decriminalization to prisoner-led organizing. His work has been published in Solitary Watch, Truthout, Prison Legal News, SF Bay View, and more. In addition to his work as a journalist, Brian served as the Director of Public Relations for NisonCo, a cannabis & psychedelics PR firm. He holds a B.A. in International Relations from Wheaton College.
Report ranks states' use of “correctional control” to provide the full picture of mass supervision in the U.S.
May 10, 2023
1.9 million people are behind bars in the U.S., but this number doesn’t capture the true reach of the criminal legal system in the country. In a new report, Punishment Beyond Prisons: Incarceration & Supervision by state, the Prison Policy Initiative shows how in America, the overuse of probation and parole, along with mass incarceration, has ensnared a staggering 5.5 million people in a system of mass punishment and correctional control.
Punishment Beyond Prisons shows the full picture of correctional control in the country, with a particular focus on the overuse of probation and parole. Altogether, an estimated 3.7 million adults are under community supervision (sometimes called community corrections) — nearly twice the number of people who are incarcerated in jails and prisons combined. The vast majority of people under supervision are on probation (2.9 million people), and over 800,000 people are on parole. The report explains how people supervised through these programs live under a harsh set of rules that others do not, and that these rules often lead them back to incarceration. In addition, it provides over 100 easy-to-understand pie charts that show how many people are behind bars or under some form of community supervision in each state.
“Probation and parole are often talked about as a more ‘lenient’ approach than incarceration, but these programs are insidiously designed to extend the reach of mass punishment beyond the prison walls,” said Leah Wang, author of the report. “To understand the full scale of the carceral system in a state, you have to look at how — and how often — probation and parole are used, and whether they strengthen our communities or simply serve as a revolving door to prison.”
Punishment Beyond Prisons provides a chart that ranks states by their use of correctional control, allowing policymakers, advocates, and journalists to better understand the scope of their state’s system of mass supervision, and how it stacks up against others.
Looking closely at state variations in the use of various forms of correctional control reveals just how differently states mete out punishments; in particular, states vary tremendously in their use of community supervision. For example, the report shows:
Massachusetts and Utah have nearly identical rates of overall correctional control, but 68% of people in Massachusetts’ punishment systems are on probation, and only 28% are incarcerated in state and federal prisons and local jails. In Utah, on the other hand, only 39% are on probation, and a much larger share (46%) are incarcerated.
Minnesota has a larger share of its population under correctional control than Alabama does, even though a resident of Minnesota is far less likely to be incarcerated than a resident of Alabama.
Because of its large probation system, Rhode Island’s total correctional control rate rivals that of Louisiana, one of the most notoriously punitive states in the country (with the nation’s highest incarceration rate).
Probation and parole are important tools that can reduce the number of people in prisons and jails. However, too often, community supervision sets people up to fail, by forcing them to comply with vague and wide-ranging rules and fees, and failure to comply can mean going to jail or prison. These “failures” are so common that less than half (44%) of people who “exited” parole or probation in 2021 did so after successfully completing their supervision terms, many of the rest were reincarcerated for “technical violations,” such as missing a check-in or nonpayment of fees — things that are not crimes in any other circumstance.
“When used properly, probation and parole can be tools to keep people out of prisons and jails,” said Leah Wang. “Instead of burdening people with onerous requirements that make it more — not less — difficult for them to build stable lives, state and local leaders should focus on connecting people with the services and supports that help them meet their social, economic, and health needs.”
The report concludes by highlighting successful reforms that have improved probation and parole and reduced the number of people behind bars. For example, California instituted new time limits on probation terms that are projected to save the state $2.1 billion. New York enacted major legislation intended to reduce unnecessary incarceration for noncriminal, “technical” offenses of parole, resulting in hundreds of people becoming immediately eligible for release and thousands more no longer living with arrest warrants for these technical offenses. Additionally, Louisiana restored parole eligibility to certain people and reduced the number of years some people must wait to be eligible for consideration.
We’re excited to introduce our new Policy & Advocacy Manager, Sarah Staudt! In her role, Sarah will provide support to state and local advocates working on issues where we have expertise and connect them with data and resources that can strengthen their campaigns.
She holds a B.A. in Law, Letters and Society from the University of Chicago and is a graduate of the University of Chicago Law School. Prior to joining the Prison Policy Initiative, Sarah was the Director of Policy at the Chicago Appleseed Center for Fair Courts where she worked intensively on the Pretrial Fairness Act in collaboration with the Illinois Network for Pretrial Justice. She also worked as a Staff Attorney at the Lawndale Christian Legal Center where she represented young people accused of crimes in juvenile and adult court.
COVID-19 wasn’t the first virus to devastate prisons and jails…and it won’t be the last. By learning from their past failures, state and local leaders can take steps now to prepare for the next inevitable viral threat.
It is important to recognize, though, the terrible consequences of the COVID-19 pandemic behind bars weren’t necessarily unique to this particular virus. Rather, COVID-19 is one more example of a historic pattern of just how vulnerable people in jails and prisons are to communicable illnesses and how — without any serious change to our reliance on mass incarceration — this population will continue to bear the disproportionate burden of public health crises, inevitably affecting the health of communities outside of correctional facilities as well.
The tuberculosis (TB) pandemic is primarily concentrated outside of the United States, but people in prisons and jails within the U.S. are disproportionately affected by TB when compared with the general U.S. population. TB cases and diagnoses have decreased steadily since 1992 in the U.S., but rates of TB in local jails, state prisons, and federal prisons actually increased from 2020 to 2021.
Hepatitis C — considered an epidemic — is also significantly more common among incarcerated populations than the general U.S. population: in 2012, 11% of people in state and federal prisons had ever been diagnosed with Hepatitis B or C, compared to only 1.1% of the general U.S. population.1 While the virus is generally considered treatable outside the walls of a prison, state and local leaders have consistently missed the opportunity to get control of the virus behind bars by their failure to implement screening and treatment protocols behind bars.
An estimated one in seven individuals living with HIV passes through the correctional system annually. Nationally, the overall prevalence rate of HIV in the U.S. in 2019 was 431 per 100,000 people and the number of new HIV infections declined 8% from 2015 to 2019. But HIV/AIDS is far more prevalent in prisons. The total U.S. prison population faces an prevalence rate that is more than 2.5 times higher: 1,144 per 100,000 people in prison have HIV/AIDS, highlighting how disproportionately affected incarcerated people are by HIV.
What these disease-specific disparities show is simple: for so many illnesses and diseases, incarcerated people face higher rates of infection and illness than their non-incarcerated counterparts.
To even begin to prevent catastrophic illness and death behind bars during the next inevitable outbreak, correctional institutions and policymakers need to reflect on the emergency (and preparatory) measures that COVID-19 showed were necessary.
Departments of corrections and state officials should expand the use of “good time” credits, and expand the use of clemency and commutations. Parole boards need to hold more — not fewer — hearings to let more people go home.
State and local legislatures can expand the list of “non-jailable” offenses, which are not subject to arrest but can only be fined or cited.
Jails should refuse to admit people accused of violating technical rules of their state probation or parole. As we recently found, people detained for technical violations can make up a huge part of a jail’s population.
Support access to existing vaccines and promote vaccine education. Vaccination efforts should include an educational component that allows incarcerated people to get the information necessary to feel comfortable taking the vaccines. Additionally, the relationship between people in prisons and the medical staff of that prison is often defined by mistrust. Information about the safety and efficacy of any vaccine is limited for people behind bars, and governments should bring in outside medical experts and community leaders who will have the trust of the people who are incarcerated and give them multiple opportunities to ask questions and voice their concerns.
Develop systems to identify and respond to viral outbreaks early:
Establish metrics to identify outbreaks and protocols to respond to them: Corrections officials must recognize that the threat posed by viral outbreaks could dramatically increase quickly. They should have established processes to monitor the threat the virus poses and, when appropriate, plans to impose more rigorous interventions — such as education, masking, increased testing, and enhanced hygiene practices — to stop its spread.
Create outbreak response plans. During the COVID-19 pandemic, rather than developing plans to mitigate the harm of an inevitable outbreak, most states were focused on restricting the movements of incarcerated people within facilities — in other words, they attempted to “contain” the virus, which is all but impossible with communicable diseases. While many facilities do have outbreak plans for specific illnesses (like influenza), these plans are often outdated. Such plans should be reviewed and updated frequently, and should always include up-to-date contacts in local public health departments.
Include incarcerated populations in the priority groups for testing, treatment, and vaccinations.
Our colleagues at the UCLA Law COVID Behind Bars Data Project found that the mortality rate in U.S. prisons increased by 61% during the first year of the pandemic. There is no doubt that the failure of officials across the country to quickly and adequately respond to the COVID-19 pandemic in correctional settings is to blame. Moving forward, prisons and jails need to remember the lessons learned during the past three years to avoid repeating the same mistakes that helped the virus spread within both prisons and the surrounding communities. The nation’s overreliance on incarceration has left too many vulnerable people behind bars in the face of public health crises.
Unique survey data reveal that people under community supervision have high rates of substance use and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality.
Research shows that people on probation and parole have high mortality rates: two and three times higher than the public at large.1 That certainly suggests that our community supervision systems are failing at their most important — and basic — function: ensuring people on probation and parole succeed in the community.
With a similar approach to our recent series regarding the needs of peopleincarcerated in state prisons, we did a deep dive into the extensive National Survey on Drug Use and Health (NSDUH). The results of this survey, administered by the U.S. Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration (SAMHSA), provide key insights into these specific — and often unmet — needs faced by people under community supervision. Because this survey asks respondents if they were on probation or parole in the past 12 months, this dataset comes closer than any other source 3 to offering a recent, descriptive, nationally representative picture of the population on probation and parole.2
The data that we uncovered — and the analyses of this same dataset by other researchers discussed throughout — reveal that people under community supervision have high rates of substance use4 and mental health disorders and extremely limited access to healthcare, likely contributing to the high rates of mortality. Moreover, the data show that people on probation and parole experience high rates of chronic health conditions and disability, are extremely economically marginalized, and have family obligations that can interfere with the burdensome — often unnecessary — conditions of probation and parole.
Who is under community supervision?
A brief demographic overview of the community supervision population
At the start of 2020, an estimated 4.1 million people were under community supervision, with the vast majority (80%) on probation. Most people on probation (75%) and parole (88%) were men and were serving a probation sentence for a felony offense (69%). Among people on probation, the “most serious offense” they were most often convicted of was drug related (26%). Among people on parole, most had a maximum prison sentence of a year or more (93%), and most commonly had been convicted of a violent offense (36%).5 Black people were overrepresented in both parole and probation populations: Accounting for 14% of the total U.S. population, Black people made up 30% of the probation population and 37% of the parole population. While most people involved in the criminal legal system — and under community supervision — are men, women serving criminal sentences of any kind are actually more likely than men to be under community supervision: in 2020, 86% were on probation or parole, compared to 67% of men serving sentences. In addition, people on probation (9%) and parole (10%) are twice as likely to identify as lesbian, gay, or bisexual when compared to the total population (5%).
Substance use and mental health
Three in 10 people under community supervision have substance use disorders, four times the rate of substance use disorders in the general population. Similarly, 1 in 5 people under community supervision has a mental health disorder, twice the rate of the general population.
In addition, NSDUH data illustrate that most people on probation and parole do not have adequate access to healthcare, implying that probation and parole offices are failing to match people with the services they need to succeed in the community. Nearly one-third of people on probation and parole with a mental health disorder report an unmet need for mental health treatment. Over two-thirds of people with substance use disorders report needing treatment, but not receiving it. Similarly, only about one-third of people on community supervision with opioid use disorder report receiving medication-assisted treatment (MAT), the “gold standard” of care.
Finally, many people on probation and parole have no health insurance, even though many people on probation and parole have incomes low enough to qualify them for Medicaid.6 25% of people on probation and 27% of people on parole were uninsured at the time of this survey. This lack of treatment access reported by people under community supervision represents a massive failure of probation and parole offices.
The NSDUH data also indicate that people on probation and parole are extremely economically marginalized, which can interfere with probation and parole conditions. 3 out of 5 people on probation have incomes below $20,000 per year, with women and Black people having among the lowest incomes. More than half have a high school education or less. And people on probation and parole are three times more likely to be unemployed than the general population. Yet, as we have discussed before, people on probation and parole are required to payunaffordable fees and costs associated with their supervision conditions (such as drug testing or ignition interlock devices), even though many are living well below the poverty line.
Finally, the data reveal that many people — and more than half of women — on probation and parole have children. Yet, probation and parole requirements almost never consider childcare or eldercare responsibilities when setting supervision conditions, even as some states require courts to consider a defendant’s caretaker status when considering a sentence to incarceration.
High school education or less
Probation and parole systems are failing to link people to the healthcare they need, despite all the evidence showing disproportionate rates of serious illness and death within supervised populations. These “alternatives” to incarceration, ostensibly created to help people address the problems that led to their conviction in a community setting, also set people up to fail with burdensome, often unnecessary requirements that show little regard for people’s individual circumstances, including low incomes and childcare obligations. The clearest example of these counterproductive conditions is the requirement to abstain from drugs or alcohol; given that so many supervised people with substance use disorders do not receive treatment, what hope do they have of staying out of jail when a positive drug test may constitute a “violation”? Probation and parole systems can’t be seen as true “alternatives” until they are overhauled to support people’s medical and personal needs instead of simply monitoring and punishing their mistakes. Until then, state and local governments should double down on their investments in diversion programs that are proven to connect people with care — and, to that same end, keep people out of courts and jail as much as possible.
The Bureau of Justice Statistics conducts the Annual Probation Survey and Annual Parole Survey, which also provides a recent, descriptive, and nationally representative picture of the community supervision population. The demographic details available from the NSDUH are richer, however, going far beyond race, sex, age, and offense type. Moreover, the NSDUH presents self-reported data, while the BJS surveys present administrative data reported by probation and parole agencies. ↩
For the purposes of this analysis, we chose to use data collected in the 2019 NSDUH rather than the more recent 2020 survey results. In the 2020 NSDUH report, the authors cautioned that “care must be taken when attempting to disentangle the effects on estimates due to real changes in the population (e.g., the coronavirus disease 2019 [COVID-19] pandemic and other events) from the effects of these methodological changes.” Because of this warning, we elected to use 2019 NSDUH so that our results could be better compared over time. Researchers updating our work in the future, however, should note one important methodological change occurred in 2020: “2020 marked the first year in which substance use disorders (SUDs) were evaluated using criteria defined in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DSM-5), as opposed to criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV).” ↩
“Substance use disorders” in this analysis were evaluated by the using criteria from the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). See footnote 3 for more information. ↩
The data on offense type for people on probation and parole used here from the Bureau of Justice Statistics, defines “violent” offenses as domestic violence offenses, sex offenses, or other violent offenses. However, generally, the distinction between “violent” and other crime types is a dubious one; what constitutes a “violent crime” varies from state to state, and acts that are considered “violent crimes” do not always involve physical harm. The Justice Policy Institute explains many of these inconsistencies, and why they matter, in its comprehensive and relevant report, Defining Violence. ↩
In all states, Medicaid provides health coverage for low-income people who qualify based on income, household size, disability status, and a handful of other factors. Most people in contact with the criminal legal system are likely eligible for Medicaid: People in prisons and jails are among the poorest in the country and have high rates of disabilities, making them likely eligible for Medicaid in almost every state. People in contact with the criminal legal system have drastically lower pre-incarceration incomes than people who are never incarcerated. In fact, 32% of people in state prisons in 2016 who had insurance at the time of their arrest were covered by Medicaid (compared to about 19% of insured people nationwide). As an additional indicator of need among this population, 50% of people in state prisons were uninsured at the time of their arrest. ↩
In this dataset, “cognitive disabilities” are defined as “serious difficulty concentrating, remembering, or making decisions.” ↩
30 visualizations expose long-standing truths about mass incarceration in the U.S. and highlight the need for change
March 14, 2023
Today, the Prison Policy Initiative released Mass Incarceration: The Whole Pie 2023, its flagship report, which provides the most comprehensive view of how many people are locked up in the U.S., in what kinds of facilities, and why. It pieces together the most recent national data on state prisons, federal prisons, local jails, and other systems of confinement to provide a snapshot of mass incarceration in the U.S.
Highlights from the report include:
Prison populations are starting to rebound. Although prison populations are still lower than they’ve been in decades, prison populations are beginning to increase as pandemic-related slowdowns in the criminal legal system are no longer driving down prison admissions. Additionally, officials continue to release fewer people from prison than before the pandemic.
Recent claims about increasing crime are not supported by data. Crime rates remain at near historic lows. However, some in law enforcement and on the right have sought to blame changes to the criminal legal system — such as bail reform, changes to police budgets, or electing “progressive” prosecutors — for increases in some crime rates since the start of the pandemic. However, these claims are not supported by the evidence: murder rates were an average of 40% higher in “red” states compared to blue states in 2020, police budgets have recently increased in the vast majority of cities and counties in the country, and places that did not implement any of these reforms also saw increases in crime rates.
In total, roughly 1.9 million people are incarcerated in the United States, 803,000 people are on parole, and a staggering 2.9 million people are on probation.
“The pandemic presented government leaders with the chance to turn the page on the era of mass incarceration, but the emerging data show that they largely squandered this opportunity,” said Wendy Sawyer, Research Director for the Prison Policy Initiative and co-author of the report. “While incarceration rates dropped quickly at the start of the pandemic, this was the result of pandemic-related slowdowns rather than any deliberate or decisive action by elected leaders. It is disappointing, but not surprising that prison populations are already beginning to creep up again.”
The report includes 30 visualizations of criminal justice data, exposing other long-standing truths about incarceration in the U.S.:
The U.S. continues to lock up hundreds of thousands of people pretrial, and therefore legally innocent, every day.
Black people are still overrepresented behind bars, making up about 38% of the prison and jail population and only 12% of U.S. residents.
Harsh sentences don’t deter violent crime, and most victims don’t support them. Contrary to popular narratives, most victims of violence prefer investments in violence prevention and alternative ways of holding people accountable rather than more incarceration.
At least 113 million adults in the U.S. (roughly 45%) have a family member who has been incarcerated, and 79 million people have a criminal record, revealing the ripple effects of locking up millions of people every day.
“As our society transitions to a new ‘post-pandemic’ normal, we are seeing a return to business as usual as officials are beginning to abandon positive practices implemented in response to the pandemic,” said Sawyer. “The size of The Whole Pie should serve as a wakeup call for both the government and the public that if we don’t take meaningful action to disrupt the real drivers of mass incarceration — poverty, criminalization, low levels of investment in services that meet people’s needs, draconian policies that fuel the systems’ expansion — then the U.S. will retain the dubious distinction as the top incarcerator in the world.”
Federal prison officials are proposing to garnish 75% of any deposits made into incarcerated people's personal accounts if those people have court-related debts. It's an extremely harmful policy that will keep incarcerated people from buying basic needs.
The Biden Administration’s Federal Bureau of Prisons (BOP) recently proposed new, draconian rules on how and when the government will seize money earned by or sent to people in federal prisons. We signed on to a 37-page letter written by the National Consumer Law Center and former Prison Policy Initiative staff member and volunteer Stephen Raher opposing this proposal.
These proposed rules are complex, legally dubious, and far-reaching, so we wanted to explain what they would do and their devastating consequences. This proposal is the latest in a trend that we’ve followed closely for years: prisons and jails, which already lock up some of the most financially vulnerable people in the country, making their lives even more difficult. Our research on this topic offers important insights into why these policies harm not just people behind bars but also our communities and the nation as a whole.
What do the proposed rules do?
The proposed rules, which apply to people who owe outstanding court debts and participate in the Inmate Financial Responsibility Program (IFRP), would allow the government to take a huge portion of the small amount of money that people incarcerated in federal prisons earn or have sent to them by loved ones on the outside. On paper, the IFRP is a voluntary program. But while people in federal prison may not be forced to take part in it, there are consequences if a person doesn’t participate. Most notably, if an incarcerated person doesn’t participate, they likely won’t receive their “release gratuity” — the small bit of money the prison gives to an incarcerated person upon their release; essentially saying, “Give us the money you’re trying to save for your release, or else we won’t provide you with a little bit of money when you’re released.” In this situation, people in federal prison are damned if they do participate and damned if they don’t.
The proposal is a response to recent and sensational stories about ultra-wealthy people in federal prisons who have amassed unusually large amounts of money in their prison trust accounts while failing to pay legal fees and restitution. These examples are the exception, not the rule; most incarcerated people are poor before prison and even poorer once they get there. Rather than crafting rules that target these outliers, the BOP has written them in a way that will make it harder for people in prisons to survive today and more difficult to establish a life after they’re released. They’ve effectively taken a sledgehammer to a problem that requires a scalpel.
As prisons across the country increasingly force incarcerated people to purchase many of their daily basic needs, money plays a more important role in helping them obtain essentials like hygiene products, over-the-counter medication, and food, not to mention covering the costs of phone calls with loved ones on the outside. This proposal would take four steps that would make it harder for incarcerated people to access and save the little money they have:
Confiscate at least 75% of money sent to incarcerated people from their loved ones on the outside. One of the main ways incarcerated people get money is through money transfers from their loved ones on the outside. Under this change, if a person wanted their incarcerated loved one to have $25 to make phone calls to their child, they would actually have to send that person $100 — four times more than they actually will get.
Seize roughly 25-50% of wages earned from work. Prison wages — including federal prisons, where wages are regularly as low as 12-23¢ an hour — are notoriously bad. Under these proposed rules, a quarter or half (depending on what type of job they had) of the money earned by an incarcerated person would be seized, making these already abysmal wages even worse.
Eliminates protections that ensure incarcerated people have the money to call loved ones. Currently, the first $75 that a person in federal prison earns or receives every month is exempted from being taken to pay for legal financial obligations, so this money can instead be used on phone calls between the person in prison and their loved ones on the outside. These proposed rules would eliminate this exemption completely, making it much more challenging to maintain these social connections, which are critical for incarcerated people’s mental health and success after prison.
Pressures incarcerated people to make a one-time payment to pay off obligations, with the threat of notifying the U.S. Attorney’s Office if they don’t. Under the proposal, if a person has enough money in their trust account to pay off their financial obligations completely, they will be encouraged to pay off the entire balance in one lump sum payment, even if that leaves them with essentially no money for other essentials. While people would not be required to make the lump sum payments, the U.S. Attorney’s Office would be notified if they don’t, an implied threat that is significant enough to be considered coercive.
These rules are a bad idea
For many people, there is a self-evident, moral reason that these rules don’t make sense: They make the lives of tens of thousands of people in federal prisons — some of the most disadvantaged people in our country — even worse, in order to punish a handful of wealthy people in prison skirting their responsibilities. However, for those not convinced by this moral argument, there are other important reasons President Biden and the BOP should trash these rules.
They exacerbate existing inequalities
On the first day of his presidency, President Biden ordered all executive branch agencies — including the BOP — to work to redress inequities in their own policies and programs, including ensuring fair and just treatment of “Black, Latino, … and persons otherwise adversely affected by persistent poverty or inequality.” Rather than addressing these inequities, these proposed rules would make them worse, particularly for women of color. Rather than targeting the assets of a few ultra-wealthy individuals, they will impact all people in federal prisons — people who are disproportionately Black and Hispanic. However, the pain doesn’t end there. If the proposed rules were adopted, family members of incarcerated people would lose at least 75% of the funds that they send to their incarcerated loved ones. This change would dramatically increase the burden borne predominantly by women — disproportionately women of color — on the outside trying to provide for their families.
They undermine successful reentry
A person’s successful transition from incarceration is something we all have a stake in. However, this punitive proposal would work against this goal in two ways.
Research has consistently shown that one of the strongest predictors of whether someone will end up back behind bars after their release is whether they have strong family and social connections on the outside. These rules would make it much more difficult and costly to maintain these connections by making it harder for people to secure the money needed to make phone calls and send letters to loved ones on the outside.
Additionally, when a person is released, they need money almost immediately to secure housing, buy food, purchase clothing for job interviews, and secure transportation to those interviews and other appointments. These rules would make it harder for people in federal prisons to earn and save money to help them upon their release. Poverty is one of the greatest indicators of a person’s likelihood of taking part in criminalized behavior and ending up behind bars. This proposal would almost certainly condemn tens of thousands of people in federal prisons to poverty, even after their release.
These misguided rules would harm nearly all people in federal prisons to address a handful of extreme cases. They’re not just cruel, though; they also undermine the Administration’s stated goal of addressing racial and economic disparities while making it harder for a person to reenter society after their release. President Biden and the BOP should abandon this deeply flawed proposal.
Research shows diversion “works,” reducing harmful outcomes and increasing access to social services. However, studies also suggest diversion is routinely denied to people of color, sending them deeper into the criminal legal system. We review the research and remind practitioners that most diversion programs aren’t designed around racial equity — but should be.
As the costs and impacts of mass incarceration continue to grow, along with increased public outrage on the issue, counties and municipalities are adopting a wide range of programs that divert people out of the criminal legal system before they can be convicted or incarcerated. Diversion programs exist to move people away from overburdened court dockets and overcrowded jails, while offering to connect them with treatment, and saving money in the process.1 This practice sounds like a win-win for communities — and it’s successful by manymetrics — but as we explain in our 2021 report about diversion programs, their design and implementation greatly impact the outcomes for defendants. That report focuses on the stage of the criminal legal process at which diversion occurs, with the earliest diversions (i.e., pre-arrest) offering the most benefits.
This briefing builds on our previous work by examining how — like every other part of the criminal legal system — diversion programs are often structured in ways that perpetuate racial disparities. Here, we review key studies showing how people of color who are facing criminal legal system involvement are systematically denied or excluded from diversion opportunities. This inequity has a ripple effect, contributing to the troubling racial disparities we see elsewhere, in pretrial detention, sentencing, and post-release issues like homelessness and unemployment. We conclude that policymakers and practitioners involved in diversion programming must address the cost, eligibility requirements, and discretionary decision-making to offer these vital opportunities in a racially equitable way.
Please note that because existing research is largely centered around prosecutor-led diversion programs, this briefing and its recommendations are, too.2 Prosecutors hold immense power in their decisions to file or dismiss charges, release pretrial defendants, and recommend sentences; in this way prosecutors are arbiters of racial fairness in the criminal legal system, in part through diversion.
Cost: “Pay-to-play” diversion programs leave low-income Black and Hispanic people unable to participate
More often than not, diversion levies exorbitant fees on its participants. Indeed, many prosecutor-led diversion programs are funded by users (i.e., participants) themselves, creating a two-tiered system where those who can pay will receive the benefits of diversion. Desperate for an option that avoids prison time, others may enroll in diversion only to be kicked out when they can’t afford fees for participation, treatment, drug testing, or something else.
Across the country, prosecutors’ offices have pitched user-funded diversion as a virtuous and fiscally responsible approach to reducing mass incarceration.3 But the indisputable relationship between income, race, and ethnicity means that fee-based diversion remains out of reach for people of color, the same way that bail and other fines and fees disproportionately burden Black and Hispanic people.
A groundbreaking report from the Alabama Appleseed Center for Law and Justice highlights the bleak financial landscape of diversion.Their survey of nearly 1,000 people involved in diversion programs in Alabama revealed that low-income people resort to extreme measures to pay their fees: The majority of respondents (82%) gave up one or more basic necessities like rent, medical bills, or car payments in order to pay various fees. Unsurprisingly, more than half of a subset of survey-takers (55%) made less than $15,000 per year, and 70% had been found indigent. Despite this high level of need, only 10% were ever offered a reduced fee or a fee waiver for a diversion program.
Even though that survey’s respondents were about equally white (45%) and Black (47%) and the survey responses were not broken out by race, the report’s authors assert that the Black-white wealth gap in Alabama “could be a major reason” that Black Alabamians are disproportionately excluded from diversion opportunities.
Fee waivers are clearly the exception, rather than the rule: In 2016, The New York Timesreviewed diversion guidelines issued by 13 of South Carolina’s 16 state prosecutors, and found that only two documents mentioned the possibility of a fee waiver for indigent people. When we know so much about how poverty is criminalizedandracialized, diversion programs designed this way seem particularly cruel.
Eligibility: Diversion programs have narrow eligibility criteria, excluding people with prior “system” contact — who are disproportionately people of color
In a world where not every individual can be diverted, someone must decide who (or what type of charge) is eligible for diversion. The “seemingly neutral constraints” on diversion programs often prioritize people with little to no criminal history, with often arbitrary rules. Criminal history is also built into risk assessment tools, which quantitatively express a person’s public safety or “flight” risk.4 These tools are favored by courts nationwide because they appear accurate and objective, when in fact they’re built on racially-biased data.
Right away, these eligibility criteria disproportionately exclude Black people, who are arrested as youth, stopped by police generally, and jailed and imprisoned at higher rates than any other racial or ethnic group in the United States. For example, a recent study found that a Jacksonville, Fla. diversion program required a third degree, “nonviolent” felony charge and no more than one prior conviction for a “nonviolent” misdemeanor: In other words, a random and nearly impossible standard to meet. Unsurprisingly, only 16% of Black felony defendants were eligible for this program, compared to 23% of white and 28% of Hispanic defendants. Rules that unnecessarily limit diversion to “first-timers” only serve to keep criminalized, marginalized groups trapped in the carceral system.
Another vexing but all-too-common feature of post-filing5 prosecutor-led diversion programs is that they often require a guilty plea in order to participate. In pleading guilty, an individual signs away their right to any further due process, and faces immediate sentencing if they’re terminated from their diversion program. While these “post-plea” diversions (also called deferred adjudications) may be convenient for a prosecutor, who wouldn’t have to take further action on that person’s case, it’s unjust to force someone into this high-stakes situation just to receive social services.
Research also finds that some diversion programs require that participants have a specific family structure at home. According to the Sentencing Project, Black youth are more likely to live in single-parent, multi-generational, or blended households that do not meet these criteria, leading to a baseless finding of ineligibility. A 2018 study found that a youth’s family structure had no effect on whether or not they completed diversion; neither did race. Youth diversion programs also often require an admission of guilt, as explained above; research illustrates that Black and Native youth, likely due to greater mistrust of the criminal legal system, are less likely than white youth to admit guilt. This reality keeps youth of color from accessing diversion, which hurts their future prospects through the mark of a juvenile adjudication.
But eligibility is not always enough: A 2021 multi-site study found that in Tampa, Fla., qualified white defendants were more likely (29%) to be diverted to their drug pretrial diversion program, compared to qualified Black (22%) or Hispanic (18%) defendants. In Chicago and Milwaukee, racial and ethnic disparities in felony diversion rates were large, too, favoring white defendants; updated data from Chicago show that the disparity is shrinking, but still present.6
Discretion: Prosecutors decide who they think is capable or worthy of diversion; biases can leave racial minorities behind
Diversion decisions are often highly subjective, leaving candidates vulnerable to the racial biases held by police, prosecutors, judges, or other decisionmakers. Even when an individual qualifies based on their charge, criminal record, or need for treatment, they must ultimately be offered diversion. Unfortunately, research has shown that prosecutors offer diversion to Black defendants much less often than white defendants with similar legal circumstances.
A 2013 study found that Black, Hispanic, Asian and Native American (the last two grouped as “Other race”) male defendants were always less likely to receive pretrial diversion compared to similarly situated white defendants in 40 large jurisdictions in the U.S. The study’s author found that additional charges, or more than one felony charge, lowered the odds of pretrial diversion by as much as 35 percent. Since prosecutors tend tobring more charges, and more punitive plea offers, against Black and/or Hispanic defendants, factoring in the number of charges can hardly be considered racially neutral.
Similarly, in 2014, a group of researchers looked at people diverted to drug treatment in California, finding that differences in how Black and white people were diverted could not be explained by case-level details or by the state’s law implementing mandatory diversion for eligible drug offenses. In the end, they concluded that “diversion to treatment appears to be driven by the discretion of court officials” rather than any other factor.
Diversion can trigger devastating immigration consequences for non-citizens
One other insidious way that diversion (or lack of access to diversion) can perpetuate racial injustice is how it interacts with immigration law.
According to the Immigrant Legal Resource Center, a criminal conviction will set off federal immigration consequences, like deportation; therefore, someone who is required to plead guilty, or fails to complete a diversion program and is then convicted, suddenly faces incarceration and removal from the country, an excessive punishment that breaks apart families.
Take, for instance, one man whose first arrest led to a diversion opportunity, for which he pled guilty in order to participate. A legal resident of the United States, he learned that his guilty plea actually meant he could be deported, despite having no connections to the place he would be sent. In a move that only underscores this bizarre chain of consequences, the man asked his state (Ohio) Supreme Court to reverse course and allow the case to be prosecuted, due to the high likelihood that his charge would be lessened, and its outcome would not trigger deportation.
But the absurdity doesn’t end there: In federal immigration statute, the definition of a conviction is broad enough that even some defendants who haven’t pled guilty to a criminal charge, and have completed diversion, may be considered to have a conviction. The way individual diversion agreements are written will determine how “immigration-safe” the program is, an indication that diversion was not designed with this complex law, let alone the well-being of immigrant families, in mind.
Sadly, evidence also points to discretion working against Black youth and their families when it comes to diversion. A 2013 review of racial and juvenile justice mentions dangerous stereotyping of Black parents “unwilling to control” or supervise their child, leading to a subjective decision of ineligibility for diversion.
It’s difficult to pin down whether cost, eligibility, discretion, or some other mechanism is the most insidious when it comes to racial disparities in diversion. They all appear to burden Black families the most, even when accounting for other factors.
Diversion programs can address racial disparities by increasing access and eliminating collateral consequences
The research is clear: Diversion alone isn’t enough to address the harms of racialized mass criminalization. Left to their own devices, people who design diversion programs and policies have built in restrictions and subjectivity that disproportionately thwart people of color, forcing them further down the road to incarceration. Existing or proposed programs must take steps to ensure that post-arrest diversion programs are equitable and accessible by all, particularly communities that are overrepresented in the criminal legal system. These steps include (but are not limited to):
Vastly expanding eligibility criteria to address the reality that Black and Hispanic people have more frequent contact with police, jails, and courtrooms that can lead to exclusion from diversion programs. With so many more qualified participants, prosecutors or other decisionmakers may rely less on discretion and more on presumptive eligibility to move people off overwhelmed court dockets (or prevent them from formal “system” involvement in the first place).
Making diversion financially accessible to all participants, especially low-income people who may resort to extreme measures in order to stay in compliance. The status quo of user-funded diversion is out of touch with its purported goal of keeping people on pathways to health and success in their communities. Fee waivers should be automatic for those who have already shown indigency.
Mitigating collateral consequences of a conviction. The requirement to plead guilty in order to participate in diversion is illogical and overly burdens defendants of color who, once they have a conviction record, are likely to struggle finding employment, housing, or a future diversion opportunity. People who successfully complete diversion should have any relevant records expunged, preventing collateral consequences. Practices like leaving charges pending during a program or simply dismissing charges at the end often isn’t enough, as that activity may still appear in a background check.
Finally, research specifically about how race or ethnicity impact access to, or success with, diversion programs remains somewhat sparse.7 Individual program evaluations often show that diversion “works” and is cost-effective, but they typically don’t consider race or ethnicity, cost to participants, or apples-to-apples comparisons to other programs. Data collection on racial and ethnic groups in diversion must extend beyond Black and Hispanic groups, and should also include sex and gender identity. Failure to acknowledge and address inequities can exacerbate existing racial divides — saving the harshest aspects of the system for people of color while providing easier pathways for white people entangled in the criminal legal system.
Ultimately, leaders should keep in mind that even if these pretrial diversion programs are administered perfectly, they still come with a host of collateral consequences that can last for years or the rest of their lives. The best diversion programs are actually investments in social services and non-law enforcement responses to community needs, keeping people out of the criminal legal system entirely. These investments prioritize community well-being and public safety over punishment and can reduce the footprint of mass criminalization in America.
It’s also worth mentioning that we include diversion research in both adult and youth populations, even though our diversion report assumed an adult’s experience. Diversion actually originated in the juvenile justice system, and academic research has remained focused on outcomes of youth diversion programs. ↩
Not all fee-based diversion programs make headlines, but a marijuana diversion program in Arizona faced scrutiny in 2018 when advocates discovered that Maricopa county and its attorney raked in $2 million annually from the program, which is available to those who can afford the $1,000 fee. And a quick Google search for “program diversion fees” leads to similarly harsh fee structures, like a Broome County, N.Y. traffic diversion program charging $200 or $400 per ticket, or this Lee County, Ala. program extracting a $100 application fee, plus administrative fees ranging from $10 to $1,000 depending on the offense. ↩
Risk assessment tools are often mentioned with respect to pretrial decision-making, when a judge must determine if someone in jail should remain there with or without bail, or be allowed to await trial at home. However, risk assessments are frequently used in other parts of the criminal legal system, like in diversion, in correctional institutions, and for reentry and supervision purposes, with similar frameworks. ↩
Prosecutor-led diversion can occur at one of two stages in the evolution of a criminal case: pre-filing, or before the prosecutor files formal charges, or post-filing, after the court process has begun but before a final case disposition. Completion of post-filing diversion program leads to the initial charges being dismissed without a trial. But while charges are pending, or even after they’re dismissed, they can show up in a background check, harming employment, housing, and other prospects. ↩
According to analysis from Prosecutorial Performance Indicators (see “PPI 7.5, Diversion Differences by Defendant Race/Ethnicity”), the diversion rate for Black felony defendants in Cook County, Ill. (Chicago) was over 15 percentage points lower than the diversion rate for white felony defendants; in the first few months of 2020, this difference hovered around 6 percent. ↩
This may be because diversion programs are “local creations,” formulated by agencies and offices with their own rules and measures of success, making them hard to analyze and compare. ↩