RECOMMENDATION 2
Rebalance public health and public safety responses
Finding
The size, scale, and scope of the criminal justice system, along with the absence of effective public health coordination, posed a significant obstacle to COVID-19 prevention and control.
For more than a decade, the criminal justice system has been contracting modestly and incrementally. In the mid-1990s, law enforcement officials made more than 15 million arrests per year. By 2019, that had fallen to about 10 million—still more than 27,000 each day and representing only a fraction of the daily contacts between individuals and police. The number of men and women held in state and federal prisons, along with local jails, stood at 2.3 million at its peak in 2008; it was about 2.1 million before the onset of the pandemic, distributed across more than 5,000 facilities, staffed by almost 700,000 individuals. Twenty-one state prison systems, plus the federal system, were operating at or above capacity; approximately 20% of jails did the same. Despite these reductions in people coming into and moving through the justice system, the coronavirus pandemic has made clear that the system remains densely populated enough to be endangered by airborne contagions. According to a report produced for the Commission, COVID-19 case rates in prisons were 3.7 times national rates and death rates were double what was expected for non-incarcerated individuals of similar age, gender, and race/ethnicity. Unfortunately, information concerning COVID-19 case and mortality rates is not available for the vast majority of jails.
FIGURE 2: CUMULATIVE COVID-19 CASE AND DEATH RATES IN STATE AND FEDERAL PRISONS, COMPARED WITH NATIONAL RATES
COVID-19 in State and Federal Prisons, Kevin Schnepel, December 2020.
Early in the pandemic, reducing prison and jail populations was a frequently suggested strategy for increasing physical distancing within correctional facilities. But efforts to substantially thin such populations were hampered by ad hoc state and local release policies and limited reentry opportunities. State prison populations have declined marginally since the pandemic began – a recent study estimates the drop is less than 5%. The number of people held in federal prisons has fallen by double that rate, over 10%. Jail populations fell more significantly, but are steadily returning to pre-pandemic levels. A recent report produced for the Commission found that jail populations in sampled jurisdictions decreased by an average of 31% after the issuance of the White House Coronavirus Guidelines on March 16, but had rebounded by late October, erasing half of that decline.
FIGURE 3: JAIL POPULATIONS AND LOCAL COVID-19 CASE COUNTS
COVID-19, Jails, and Public Safety, Anna Harvey, Orion Taylor, and Andrea Wang, December 2020.
The large number of individuals coming into contact with the criminal justice system and being placed into custody poses a significant obstacle to COVID-19 mitigation strategies in correctional facilities. While prison and jail populations declined during the pandemic, more can and should be done to better limit contact, maximize distance, and reduce density. With fewer people incarcerated, correctional officials will find it easier to place individuals in single cells, maintain sufficient resources for testing, and safely quarantine people after exposure to the virus. A committee convened by the National Academies of Sciences, Engineering, and Medicine (NASEM) recently reinforced the importance of decarceration – including both diversion and accelerated release practices – as a COVID-19 mitigation strategy in correctional facilities. As the report notes, evidence gathered prior to the pandemic clearly demonstrated that it is possible to reduce incarceration without increasing crime. During the pandemic, those released from jail had been detained on more serious charges yet were rebooked (arrested and incarcerated) less frequently than those who were released before the pandemic began. While the unique circumstances of the pandemic may suppress some forms of crime and arrest activity by law enforcement, preliminary data suggests that those who have been released since the emergence of COVID-19 posed no greater public safety risk than those who were released prior to it.
By employing public health strategies and scaling up necessary resources to address behavioral health issues, criminal justice leaders can reduce law enforcement contact and correctional populations while maintaining public safety. For instance, an estimated 7% of police contacts in jurisdictions with 100,000 or more people involve the mentally ill. Thirty-seven percent of those incarcerated in prison and 44% of those in jail have been diagnosed with a mental illness. By emphasizing and scaling public health approaches to behavioral health issues like mental illness, scarce law enforcement resources can be devoted to prevention and detection of incidents that pose the largest threat to community safety.
“We have to become as targeted and surgical as we can when making decisions about where to allocate our law enforcement resources.”
Melissa Nelson
Finally, two NASEM reports have reviewed the effectiveness of long sentences and found it to be limited. “The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation.” It may be time to reconsider whether these sentences serve the public interest in safety, health, and justice.
Recommendations
Rebalance criminal justice and public health responses in order to limit contact, maximize distance, and reduce density across the criminal justice system.
1
Expand emergency release mechanisms (or “safety valves”) that permit medically vulnerable people in prison to petition for their release.
Despite their wide availability, compassionate or medical release laws and policies are rarely used. Obstacles include “strict or vague eligibility requirements; categorical exclusions; missing or contrary guidance; complex and time-consuming review processes; and unrealistic time frames.” When they are granted, such releases typically relate to cases in which the applicant seeking release faces a dire medical prognosis. Our current public health pandemic – which disproportionately impacts individuals with poor health conditions and histories of chronic disease confined in close quarters – would appear to fit this criteria, but few people have been granted medical release in the past year. Given the significant medical vulnerability of some incarcerated individuals, compassionate release policies should be revised and expanded. In particular, public health criteria such as an applicant's potential vulnerability to COVID-19 or other infectious diseases should be considered. In addition, states, localities, and the federal government should consider adopting special protocols that would permit incarcerated people to petition for their release during public health emergencies that involve communicable illnesses, when facility crowding reaches certain levels, and during other circumstances that might pose serious threats to safety and health. An expedited case-review process should examine the potential risks to an individual petitioner’s life and health and other factors such as protection of the public and the individual’s behavior while incarcerated. This public-health safety valve mechanism should extend to all those not serving sentences of natural life or death. Decision-making authority should rest within the executive branch, which can consider the interests of victims and survivors, as appropriate.
2
Invest in evidence-based public health alternatives to traditional law enforcement and sentencing, particularly for behavioral health issues.
Research has demonstrated the effectiveness of alternatives to law enforcement responses for individuals with behavioral health issues. For example, the Sequential Intercept Model supported by the U.S. Substance Abuse and Mental Health Administration provides a strategic framework to help identify strategies to divert people with mental and substance use disorders away from the criminal justice system in appropriate cases.
FIGURE 4: SEQUENTIAL INTERCEPT MODEL
At each stage of the criminal justice system, there are “intercept” points where diversion is possible. With regard to mental health specifically, prior to making an arrest police can be provided with community-based alternatives for people with a mental illness. For instance, Miami-Dade County’s Criminal Mental Health Project trains police officers to better help people facing a mental health crisis. In 2013, Miami police arrested only nine of more than 10,000 people in response to mental health calls, bringing the vast majority of them to crisis stabilization centers. The reduction in arrests allowed the county to close one of its five jails. The project also offers treatment programs for those who are arrested for non-serious crimes and who have a mental illness. Participants in these programs are 58% less likely to be arrested than those who did not participate. After arrest, mental health courts offer specialized expertise and services for defendants who have a known mental illness. More than 150 of these courts exist today. Their objective is to administer justice and improve health and safety outcomes by linking defendants to housing, treatment, and support services while providing continued judicial supervision. Research findings are mixed, but many mental health courts have positive impacts on participants. For instance, mental health court participants from San Francisco County, Santa Clara County (CA), Hennepin County (MN), and Marion County (IN) were significantly less likely to be rearrested and experienced significantly fewer incarceration days in comparison to a group who received treatment as usual. Reentry programs can ease the transition back to the community for mentally ill individuals at the time of their release. The Mentally Ill Offender Community Transition Program in Washington state provides coordinated pre-release planning, intensive post-release case management services, structured programming, daily contact, bimonthly home visits, individual crisis response planning, and close coordination with community corrections officers. An evaluation found that participants in the program were significantly less likely to be convicted of a new crime compared to a matched non-participant group (39% versus 61%). While there are demonstrated successes, it should be noted that many mental health interventions provide mixed or limited results. For instance, two systematic reviews of police-led crisis intervention teams found either no positive effects or mixed effects on arrests and officer safety, despite the immense popularity of the strategy. This is an indication that more investment, and in particular more rigorous research, is needed to identify which program elements are more and less effective. The Sequential Intercept Model has also been used to address other conditions that implicate both public safety and health, such as substance use disorders, and could be extended to other chronic conditions such as homelessness.
“In many ways the criminal justice system has had to confront the shortcomings of the public health system, particularly with regard to mental health and substance abuse.”
Dr. Tom Inglesby
3
Ensure access to behavioral health treatment, adequate medical care, and stable housing for those returning from incarceration.
In order to facilitate the reentry process, federal, state, and local officials should identify and remove barriers to individuals seeking to access and maintain public benefits, including Medicaid, Medicare, the Supplemental Nutrition Assistance Program, and Supplemental Security Income. Effective reentry planning should facilitate access to health care for recently released individuals by prioritizing the urgency of first appointments immediately after release and easing restrictions on telemedicine to improve engagement in primary care, substance use, and mental health treatment. In addition, every individual who is a citizen should be provided with an official government-issued identification card.
4
Reconsider the longest sentences.
Numerous studies have established the limited public safety utility of the longest criminal sentences. Many people serving long sentences were convicted of serious, violent offenses. Others have long records of criminal activity, some of which were sentenced under mandatory minimum or repeat offender laws that are now considered by many to have been draconian. State and federal lawmakers should reexamine the benefits of very lengthy sentences in comparison with their costs. A task force convened by the Council on Criminal Justice recently recommended federal legislation, based on the revised Model Penal Code of the American Law Institute, to provide opportunities for people serving federal criminal sentences to petition the sentencing court for modification of such sentences after 15 years. Similar “second look” legislation at the state level should be considered as well.
