Author: Matt Davis

Jails are racialized organizations. Many jails have racialized subcultures, where residents of non-White racial backgrounds face increased segregation, tensions, or violence; limited employment opportunities; and social stigma. Racial disparities in incarceration exacerbate vulnerability to violence, sexual abuse, solitary confinement, and inadequate healthcare. Carceral environments such as jail often manifest racial divisions, with staff frequently exhibiting racial antagonisms, either individually or collectively.

As part of its efforts to lower jail populations across America and address racial disparities in the criminal justice system, the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge recently funded a project examining racial disparities within a county jail. The resulting report presents an approach that can build greater racial equity within jail settings.

The premise of the report is that the lack of racial equity in jails can profoundly impact the conditions of confinement for both residents and staff. The following key themes emerged in the research:

• Staff and incarcerated persons identified that they felt a pervasive sense of unfairness within the organization, and people in minoritized groups felt that there was little accountability for staff racist behavior or misconduct of any kind.
• Staff and incarcerated persons felt that racism is implicitly endorsed and perpetuated. Conversely, some White staff and residents downplayed or overlooked the existence of racism, and attributed any hardships experienced in the jail environment to factors other than race.
• Staff concerns included disparities in promotions and leadership opportunities. Black staff felt that they were often overlooked for promotions. Staff felt that there was a lack of transparency in the process.
• Resident workgroups described a lack of beneficial programs within the jail. Incarcerated women denoted that the programming was designed for men, and that they did not have equal opportunity to participate in programming.
• Healthcare, particularly access to mental health services, was a key stressor for all. Many residents indicated that their medical emergencies were not taken seriously or responded to in a timely manner. Staff would like more mental health counseling made available, as well as a cultural emphasis on staff and incarcerated person wellness.
• Inequities are intersectional. For example, women felt that their hygiene needs were not addressed. Women lacked access to soap, menstrual supplies, and undergarments. The concerns were heightened for Black women. Individuals who did not speak English as their primary language or had other physical or mental disabilities felt that their needs were not met or even considered.

Through workgroups and surveys involving staff and residents, we identified and prioritized 30 interventions that can help jail become more equitable. The following key themes emerged:

• It is essential to balance power in racial equity work, particularly in the context of jails where conditions of confinement are intertwined with power dynamics.
• Both staff and residents want more transparency and accountability. They felt there was a need to develop or appoint an external group to review the jail operations and manage staff complaints and internal affairs investigations.
• Staff requested a clear career pipeline from the jail’s frontline to leadership to allow for job expectations to be more transparent. They requested that all employees receive the support, training, and development needed to be promoted to higher jobs.
• Both staff and residents requested substantial reforms to healthcare. Residents suggested implementing a protocol to respond to sick calls and medical emergencies. Staff felt that there was a stigma against requesting assistance, particularly mental health care, and suggested more confidential programming and supports.

The issues raised during this project require care and attention that are often not fully available to those who manage a chaotic environment such as a jail. Staff and residents raised concerns about the full adoption and sustainability of this effort. Continued support is needed in the implementation of the recommendations, and this underscores the broader implications for the sustainability of this transformative work and its potential for lasting systemic change.

Reentering the community after incarceration is a complicated, lengthy process, made more difficult by system failures and lack of support and services. Many survivors have specific needs, but these are rarely considered in reentry programs. Experts suggest making the process more trauma-informed and centering the needs of survivors.

The National Center for Victims of Crime recently convened a group of experts with lived experience with victimization and incarceration to discuss how to make the reentry process more trauma-informed. We want to extend a special thank you to Tanisha Murden, Rylinda Rhodes, and Jason Witmer for their participation, which was essential to the report they co-authored on the subject, and the recommendations it provides.

Key Takeaway 1: Every person is different and has different needs related to their past trauma. 

Trauma can result from exposure to emotionally disturbing or life-threatening incidents that have lasting effects on a person’s functioning and well-being. According to the Centers for Disease Control and Prevention, up to 60 percent of adults experienced traumatic events during childhood, while incarcerated individuals report an average of at least five traumatic childhood experiences. The environment to which people are exposed while incarcerated is also inherently traumatizing, with appalling conditions like overcrowding, solitary confinement, and exposure to violence. These factors can contribute to a post-incarceration syndrome like post-traumatic stress disorder (PTSD), making it difficult for formerly incarcerated individuals to meet their basic survival needs.

Trauma can also lead to negative outcomes as people reenter society after incarceration, such as technical parole violations resulting in a return to jail or difficulty adjusting to work and social situations. This all highlights the need for trauma-informed reentry services to support individuals in healing and successfully integrating back into society. When people who have been incarcerated have unaddressed trauma, they may experience a range of serious negative outcomes. Meanwhile, trauma-informed reentry services allow people to make mistakes and be imperfect.

Key Takeaway 2: Centering families and children with wraparound support 

Family connections are crucial for successful reentry post-incarceration. They provide emotional, psychological, and practical support while minimizing the negative impact of parental incarceration on children. Support from family members aids in community reintegration, reduces recidivism, and acts as a primary source of financial and emotional assistance. Increased visitation, especially close to an individual’s release, has been shown to delay recidivism.

However, families dealing with incarceration face various challenges like separation, economic strains, and social stigma, which can adversely affect children’s outcomes in the long run. Positive family backing during reentry is essential, though it can strain families emotionally, socially, and financially. Inclusive case management involving family, friends, mentors, and others in the reentry planning process can help in maintaining vital connections. Peer support from individuals with similar experiences can aid in family reunification, offering guidance and emotional support to both the formerly incarcerated individual and their family. This support system encourages openness about fears and concerns while serving as a beacon of hope for successful recovery post-release.

Key Takeaway 3: Lower barriers to services and consider locating them in the same place.

It is challenging for people leaving incarceration to stabilize their lives on the outside. While some communities have resources for reentry assistance, these resources are often disconnected and do not provide efficient support. Some organizations prioritize outcomes over building relationships, which may result in re-traumatization. Reentry centers offer support for various needs including housing, employment, transportation, substance use and mental health treatment, and medical care. The effectiveness of these services is heightened when provided by individuals who have successfully reintegrated into society themselves. These individuals understand the daily challenges of reentry, which is crucial in cases where the community has changed since the individual’s incarceration. Some community members may not be supportive, making it vital for the reentering individuals to have access to peers who understand both the internal and external challenges they face. Supportive peers not only alleviate feelings of isolation but also serve as role models, showcasing the possibility of success beyond past mistakes.

Key Takeaway 4: Infuse knowledge of trauma and how it manifests into every step of reentry.

Training for reentry providers is essential to effectively work with clients affected by trauma. This training should cover the impact of trauma on clients, vicarious trauma on providers, trauma-informed care principles, and specific trauma-informed skills like de-escalation. Ongoing coaching or supervision can further support providers in mastering new trauma-informed skills.

Additionally, service providers should recognize the importance of positive reinforcement in building trust and encouraging success for individuals reentering society. People who are incarcerated often experience trauma, but they also demonstrate resilience. Reentry providers can support them by using case planning and service referrals based on factors that promote healing and resilience. These strategies can include social support, stable employment or school connections, coping skills, and spirituality. Referrals to trauma-specific treatments are crucial for clients with conditions like PTSD or post-incarceration syndrome.

Key Takeaway 5: Implement healing practices into all reentry plans. 

The purpose of restorative reentry processes is to aid people in a successful transition home by repairing harm to the extent possible. This aids people returning from incarceration to rebuild support, ultimately reducing recidivism and trauma. Restorative justice can use a trauma-informed approach by recognizing the impact of trauma on both the victim and the person who perpetrated the crime and addressing those effects in the process of restoring harm and repairing relationships. By focusing on the traumatic impact, preventive strategies can be formulated. A trauma-informed restorative justice process involves understanding the prevalence of trauma, recognizing signs and symptoms, responding with empathy and support, and taking steps to avoid re-traumatization.

Highlighting Promising Programs

The report links readers to six trauma-informed reentry programs showing promise across America. While we recognize that implementing these best practices may be a lengthy process, it is well worth the effort. The promising programs we highlight show that integrating trauma-informed approaches will create more sustainable and successful reentry programs, nationwide.

Data is a key part of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge, in its efforts to reduce local jail populations across the country. Likewise, a new data-based report by the Prison Policy Initiative highlights a stark reality: Women are disproportionately incarcerated in jails across the country.

In stark contrast to the total incarcerated population, where state prison systems hold twice as many people as are held in jails, more incarcerated women are in jails than state prisons. The outsize role of jails has serious cascading consequences for incarcerated women and their families.

Gender-based data is inconsistent throughout America’s jail systems, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, it is difficult to track changes in women’s incarceration over time because we are forced to rely on the limited sources available.

Nevertheless, the data that are available show us some trends. For example, we know that a staggering number of women who are incarcerated are not convicted. More than 60 percent of women in jails under local control have not yet been convicted of a crime and are awaiting trial. And the number of women in local jails—84,000—only scratches the surface of the number of women—2 million—who go through the doors of local jails each year.

When law enforcement locks women up, even for a few days, it can have an outsized impact on their lives. Many women who are incarcerated may be working low-income jobs or serving as caregivers for their children. 80 percent of women in jails are mothers, and most of them are primary caretakers of their children. Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women.

A short jail stay can mean women lose custody of their children and their housing. Many women who end up in jail are survivors of domestic abuse, so jailing them compounds deeper injustices. Many survivors of domestic and sexual abuse have also been incarcerated for violent crimes that occurred in response to gendered violence and abuse, so excluding them from many criminal justice reforms based on offense categories such as “violent” crimes makes little sense.

Jails are also particularly poorly positioned to provide proper health care. In fact, local jails tend to offer fewer services and programs overall than prisons do, and because most programs are designed for the larger male population, women may not even have access to programming that’s available to men in the same jail. Women coming into the jail system with substance abuse issues or behavioral health challenges may be significantly challenged in the jail setting.

Furthermore, even among women, incarceration is not indiscriminate, and reforms should address the disparities related to LBTQIA+ status, race, and ethnicity as well. A 2017 study revealed that one-third of incarcerated women identify as lesbian or bisexual, compared to less than 10 percent of men. The same study found that lesbian and bisexual women are likely to receive longer sentences than their heterosexual peers, and more likely to be put into solitary confinement.

Although the data do not exist to break down the “whole pie” by race or ethnicity, Black and American Indian or Alaska Native women are consistently overrepresented in state and federal prisons. While we are a long way from having data on intersectional impacts of sexuality and race or ethnicity on women’s likelihood of incarceration, it’s clear that Black and lesbian or bisexual women and girls are disproportionately subject to incarceration.

Even the “whole pie” of women’s incarceration in the chart above represents just one small portion (17 percent) of the women under any form of correctional control, which includes 808,700 women on probation or parole. Again, this is in stark contrast to the total correctional population (mostly men), where one-third (34 percent) of all people under correctional control are in prisons and jails. Nearly three-quarters of women (73 percent) under the control of any U.S. correctional system are on probation. Probation is often billed as an alternative to incarceration, but instead it is frequently set with unrealistic conditions that undermine its goal of keeping people from being locked up.

Reentry is another critical point at which women are too often left behind. Almost 2.5 million women and girls are released from prisons and jails every year,  but fewer post-release programs are available to them — partly because so many women are confined to jails, which are not meant to be used for long-term incarceration. Additionally, many women with criminal records face barriers to employment in female-dominated occupations, such as nursing and elder care.  It is little surprise, therefore, that formerly incarcerated women — especially women of color — are also more likely to be unemployed and/or homeless than formerly incarcerated men, making reentry and compliance with probation or parole even more difficult. All these issues make women particularly vulnerable to being incarcerated not because they commit crimes, but because they run afoul of one of the burdensome obligations of their community supervision.

The picture of women’s incarceration is far from complete, and many questions remain about mass incarceration’s unique impact on women. While more data are needed, the data in this new report lend focus and perspective to the policy reforms needed to end mass incarceration without leaving women behind.

January is Poverty Awareness Month in America, so it is an appropriate time to look at the early implementation of Illinois’ Pretrial Fairness Act (PFA), which eliminated cash bail for all criminal cases. It became effective on September 18, 2023, three years after its passage.

Part of the impetus for the law was to eliminate wealth-based pretrial release and detention. While the public may hear about criminal cases involving wealthy celebrities posting millions of dollars in bail to secure their pretrial release (for example Robert Durst, Bernard Madoff, Wesley Snipes, Phil Spector, and Martha Stewart all posted eye-watering bail amounts), the majority of people charged with crimes in the United States are not wealthy. More than 80 percent of felony defendants cannot afford to hire a private attorney. For many defendants, the ability to post even modest monetary bail amounts is nearly impossible. And defendants often must rely on family members, who are usually in the same financial situation as their loved one, and have to cobble together the money to secure pretrial release.

Loyola University Chicago’s Center for Criminal Justice is conducting a long-term evaluation of the implementation and impact of Illinois’ PFA, objectively assessing the degree to which the elimination of cash bail corresponds to the many predictions practitioners, policy makers, and advocates have made.

For example, some are expecting jail populations to decrease; others, however, argue there will be no change in the size of jail populations, but there will be a change in the composition of who is held pretrial as only defendants charged with serious offenses are detained. Others think jail populations may increase, as defendants who previously would have been released quickly after posting bond are now held in detention until their case is disposed. Some are predicting that failure-to-appear rates or rates of new criminal charges will increase, while others believe there will be no change or perhaps a lower rate of these negative pretrial outcomes since individuals that pose a higher risk cannot post money to be released. Our research will be testing these and other hypotheses regarding the implementation and impact of the PFA, and in time we will be able to answer these questions.

There is, however, one outcome that is guaranteed: People charged with crimes on or after September 18, 2023 will not be required to post money bail to secure their pretrial release.

Under the PFA, the majority of defendants charged with low-level felonies and nearly all defendants charged with misdemeanors must be released pretrial with or without conditions, such as supervision. Only defendants charged with specific offenses can be detained pretrial following a hearing to determine if detention is necessary to ensure public safety or appearance in court. If a court determines detention is not necessary, these individuals also must be released with or without conditions.

Prior to the implementation of the PFA, an average of 230,000 defendants were admitted to and released from pretrial detention in Illinois each year, and along with their family members they collectively posted more than $140 million per year in monetary bail. Thus, in the four months since the PFA was implemented, defendants and more likely than not, their family members, did not have to post roughly $46 million in monetary bail to secure pretrial release.

However, the PFA does more to the address the nexus of poverty, crime, and detention than just eliminate cash bail. Under the PFA, a defendant’s inability to pay for a condition of release such as electronic monitoring cannot be used as justification for pretrial detention. Previously, whether a defendant on pretrial release had to pay for electronic monitoring depended on the county where their case was being heard.

In addition, under the PFA, all defendants must have legal counsel at their first hearing when decisions about detention and release conditions are set. Previously, this was not the case in many rural counties. Like many states, criminal defense services for low income people in Illinois are provided at the county level with limited state funding. Thus, low income defendants in rural counties oftentimes did not have legal representation when bond was being determined, although they were provided legal counsel at subsequent hearings.

The lack of adequate legal representation for defendants with low incomes in many parts of the state was identified as a potentially significant impediment to the effective implementation of the PFA, particularly the requirement that defendants be represented when detention or pretrial release conditions are determined at the first appearance. To address this problem, $10 million in funding was appropriated and distributed to all Illinois counties, except Cook County (where Chicago is located), based on a funding formula that included the percent of the county population living in poverty and the volume of criminal case filings. While part of the lack of legal representation is due to the limited number of licensed attorneys in some parts of the state, the limited resources in many smaller counties also contributed to the limited defense services.

The statewide elimination of monetary bail in Illinois increases, to some degree, consistency across the state. In Illinois prior to the PFA, like most states, the decisions about who would be released on their own recognizance and the amount of monetary bail imposed were made by practitioners in individual counties. As a result, the proportion of defendants required to post bail and the bail amounts they had to pay varied considerably. In other words, a low income defendant in one county might be released on their own recognizance, while a defendant with the exact same characteristics in another county might be required to post $1,000 to secure their release, and in another county, $2,000. Observational research we did prior to the PFA’s implementation confirmed this. While it is unlikely that the general wealth of criminal defendants varied considerably, the median amount of money that defendants were required to post ranged from $1,000 to $10,000.

We also found a wide variety of reasons why criminal justice practitioners saw utility in requiring defendants to post money to secure their release beyond the intended purpose of ensuring court appearance or deterring additional criminal behavior while awaiting disposition on the current case. For example, setting high bond amounts was often seen as a more efficient means of achieving preventative detention—the goal of setting a $3 million bond for someone charged with murder was really to make sure they remain detained; however, it also theoretically says that the judge setting the bond is OK with the person being released if they can post $300,000 or 10 percent of the bond amount, which was generally required in Illinois to secure release.

Another benefit to monetary bail cited by practitioners was the assurance that, if convicted, any court-imposed fees, fines, or restitution could be immediately deducted from the money the defendant had posted. Indeed, research performed for the Illinois Supreme Court Pretrial Practices Implementation Task Force found that most bond money posted by defendants, or more realistically, their family members, was used to pay these fees, fines, and restitution. Based on interviews we did prior to the implementation of the PFA with defendants who had posted monetary bail, this practice can be a source of legal cynicism. Specifically, defendants often expressed the frustration that the money posted, and later kept, was that of family members and resulted in them feeling like the justice system is illegitimate: “Well, it makes me feel like they’re crooked and they’re only out for money.”

One of these fees is the “Bond Processing Fee,” which generated anywhere from $5 million to $17 million per year statewide in the years leading up to the PFA. Importantly, the PFA does not eliminate the ability for individuals convicted of crimes to have fees, fines, or restitution imposed, with the obvious exception of the Bond Processing Fee. What could potentially change, however, is that the imposition of these fees, fines, and restitution orders will be based on what the now convicted individual can pay, rather than how much of their family’s money is sitting in their bond account.

The ultimate impact of the PFA on rates of pretrial detention, lengths of pretrial detention, rates of failure to appear or new charges being filed during pretrial release, the degree to which defendants are quick to take plea deals to get out of pretrial detention, the sentences imposed, and financial conditions of sentences is yet to be determined. But our evaluation will answer these questions in the months and years to come. It is likely that the impact of the PFA on these outcomes will vary across Illinois’ diverse 102 counties. However, one thing is guaranteed: The ability to post a monetary bail will not be a factor that determines who is, and who is not, held in pretrial detention.

Prosecutors are elected by voters to protect the safety and wellbeing of the communities they serve. Removing prosecutors from office can have a chilling effect on the rule of law. It blurs the separation of powers and upends the checks and balances the three branches of government were designed to ensure.

The removal of Florida State Attorney Monique Worrell from her elected prosecutor position is one recent example, but threats to prosecutorial independence are emerging nationwide. Georgia, Tennessee, and Texas have already passed laws making it easier to remove prosecutors from office, and currently there are more than 24 bills in 16 states that would limit the power of prosecutors.

Giving governors the authority to supersede the will of voters and oust a prosecutor impedes a prosecutor’s ability to make the best decisions for their communities and erodes the separation of powers that are central to our democracy. If a prosecutor’s job is at risk, they may be reluctant to adopt promising prosecutorial practices or exercise their discretion to make the tough calls that they believe are right for their communities.

Independence is central to a prosecutor’s ability to be effective, as what a governor or legislator may consider politically popular does not always advance the mission of prosecutors to ensure justice and the safety and wellbeing of their community.

The United States Supreme Court has a long history of validating the importance of prosecutorial independence—from the recent June ruling affirming the United States government’s prosecutorial discretion in immigration to the 1935 case of Berger v. United States, which stated the prosecutor’s “compelling obligation” is “not that it shall win a case, but that justice shall be done.”

America is a patchwork of nuanced law and procedure around prosecutorial independence, but the responsibility of elected prosecutors remains constant: to use the lawful discretion of their offices to hold individuals accountable for their actions, protect victims of crime, and work to improve the safety of their communities. Prosecutors should be held accountable for fulfilling these responsibilities, rather than to the political whims of an executive branch.

Each of the three branches of state government should operate independently and none should hold greater power than another. The ramifications of one branch having the power to remove an elected official of another branch, without due process, are far reaching. Should an attorney general have the power to single-handedly remove a governor? Or should a governor have the power to remove a legislator without an impeachment trial?

Our Prosecutorial Independence Policy Brief articulates the role and duties of the prosecutor as “ministers of justice,” and underscores the importance of prosecutorial decision-making and the exercise of discretion to ensure justice, fairness, accountability and community safety. The brief addresses the core tenets of our democracy, including the separation of powers.

The prosecutor’s duty is to fulfil their role as ministers of justice, promoting more equitable, safer, and more just communities. Prosecutorial independence ensures an important separation between politics and the criminal legal system necessary to create safer communities through a more just and equitable legal system.

–The Association of Prosecuting Attorneys is a strategic ally of the Safety and Justice Challenge to uplift practices that work to keep communities safe while lowering jail populations and reducing racial and ethnic disparities.