Author: Matt Davis

To meaningfully advance racial equity in the criminal legal system, representatives from all components of the justice system, people directly impacted, and partners at the local, state, and federal level have built a National Initiative to Advance Race Equity in the Criminal Legal System.

These stakeholders recognize that administering justice and making communities safer requires authentic community engagement and elevating the voices of people directly impacted by the criminal legal system, especially including justice-involved individuals and their families, victims, and survivors of crime.

A convening of the group was facilitated by persons with lived experience, and the development of this framework represents this authentic engagement and collaboration by representatives of the criminal legal system.

A consensus statement of principles with supporting rationale and background literature has been created to equip federal, state, and local legal system stakeholders to explore and pursue new approaches to building stronger relationships with communities and the broader legal system to advance racial equity and promote community safety and well-being. This document contains a unified statement of principles, policies, and practical guidance to advance racial equity in the criminal legal system, as well as recent real-world examples of policies and practices implemented by a variety of system stakeholders and community organizations throughout the country.

The following principles are the basis for the policy recommendations developed through this collaborative and to inform future resources. They can be adopted at the tribal, local, state, and federal levels in communities throughout the country to meaningfully address the root causes of inequity and strengthen public safety.

Statement of Principles

• The criminal legal system is comprised of justice system stakeholders, including law enforcement, prosecutors, defenders, pretrial services, courts, correctional centers, and community-based corrections (e.g., probation, parole, reentry services), as well as community organizations, public participants (e.g., jurors), and the tribal, local, state, and federal partners that jointly determine individual- and community-level outcomes.
• The purpose of the criminal legal system is to serve the community, including victims, young people with legal system involvement, persons with lived experience in the justice system, and their families through promoting public safety, holding individuals accountable for their actions, administering justice, facilitating the rehabilitation of and reentry to communities of system-involved individuals, and ensuring support services and assistance for victims of crime to seek justice and healing.
• Racial equity is essential for the criminal legal system to achieve these purposes. When the system creates a disparate impact or fails to ensure full access to the benefits of the legal system to any person or community because of race or ethnicity, that system is inequitable. Racial equity in the criminal legal system is realized when all community members are fairly treated by the system in a manner that meets their needs and ensures everyone’s human dignity is acknowledged.
• A broad and comprehensive approach is necessary for the criminal legal system to adequately address the many causes and consequences of racial and ethnic disparities. Coordination across all system and community stakeholders which elevates the perspective of people with lived experiences in the justice system will best recognize the full scope of how the system impacts community outcomes and how best to implement effective and sustainable policies and practices to advance racial equity within systems.
• Authentic community engagement is an essential and often underappreciated component of comprehensive efforts to address racial equity. Authentic engagement that involves community members and persons with lived experience and their families, and victims and survivors in the shaping of system policies and practices, will best achieve desired community outcomes by leveraging the specific expertise and competencies of the community and fostering trust between system stakeholders and community members.

The criminal legal system exists to serve communities, which ultimately bear the outcomes of decisions made by system stakeholders. Thus, community members and persons directly impacted by the criminal legal system must be at the forefront of efforts to advance racial equity in the administration of justice and promotion of community safety. Authentic community engagement requires forging trust between system stakeholders and communities, centering community members in system decision making, and empowering them to act as equal partners in the shaping of policies and practices so that the system can fully meet the needs of communities, treat all persons equitably and with dignity, and realize greater justice, fairness, and safety for all.

This initiative and the convening were made possible through the support of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge and the efforts of those who volunteered their time and insights to produce the document.

Perverse incentives drive government officials across the United States to stop, arrest, put through the court system, and even jail more people to generate revenue rather than to advance public safety. That is the focus of our recent report from the Brennan Center for Justice produced with support from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC).

The report attempts to explain why decades-long efforts at decarceration, and broader criminal justice reform have run into such immense challenges focusing on a range of programs and practices often said to be aimed at public safety, but which are better understood through the lens of revenue production. The publication details how ending mass incarceration cannot happen until policymakers and the broader public understand and change the deeply entrenched economic and financial incentives that encourage punitive enforcement and imprisonment. Better understanding the extent of these interlocking incentives should make policymakers clearer eyed in making transformative policy changes.

Complex factors beyond simply increases to police forces and more punitive criminal penalties played a significant role in creating today’s bloated jail and prison populations. The report highlights some of the most corrosive and entrenched revenue generating practices—such as civil asset forfeiture, fines and fees, and privatized community supervision—where people subjected to criminal enforcement activities are routinely made to contribute to the very cost of their being arrested, detained, charged, prosecuted, supervised, or incarcerated. These economic and financial incentives established by local, state, and federal agencies are hiding in plain sight. The report details how police, prosecutors, and corrections agencies competed for these benefits by escalating their enforcement practices. Law enforcement came to depend on these funding sources, particularly as declining tax receipts and intergovernmental transfers left them grasping to fill budget holes. These incentives are a persistent structural driver of punitive enforcement and mass incarceration.

User-Funded Justice

Often so much time and effort go into generating revenue that the goals of pursuing justice and improving public safety get pushed to the side. The killing of Michael Brown in Ferguson, Missouri, drew national attention to this phenomenon because the city had pushed the police department and the courts to maximize funding potential of fines and fees. In fiscal years 2010 and 2011, about 12 percent of Ferguson’s general fund revenue came from fines and fees. By fiscal year 2015, the city was budgeting for 23 percent of its revenues to come from fines and fees.

Civil asset forfeiture has also turned into a major revenue source, going well beyond its onetime purpose of targeting drug kingpins. Law enforcement agencies seize and retain peoples’ cash, vehicles, homes, and other items on a suspicion of their connection to an offense without having to prove the connection. Minnesota’s Metro Gang Strike Force is a good example of this. An investigation revealed that its members were stopping and searching people who were clearly not involved in gang activity, and then taking or buying seized items for personal use — like televisions, tools, appliances and jet skis.

Correctional and Detention Bed Markets

Perverse incentives have also created a market in incarcerated people. Financially distressed counties have seen the market as a solution to their budget woes—often expanding their jails, or building jails that are bigger than they need, with the expectation of selling the extra bed space. As a result, a thriving market exists for beds in local jails and other detention facilities. In Louisiana, for example, Immigration and Customs Enforcement pays $74 a day to local sheriffs for its jail beds. That is nearly three times what the state prison system pays the same sheriffs to use its jail beds. In Midland County, Michigan, the local budget depends on renting jail beds at $45 a day to other counties. Bladen County, North Carolina, earned nearly $2 million in the first 18 months after it started holding people for the federal government in its local jails.

Enforcement-Oriented Performance Metrics.

Police departments and prosecutors’ offices reward staff for meeting productivity-based job metrics, such as arrest quotas and high conviction rates; they penalize people who fall short. With their job security and career advancement at stake, law enforcement officials are incentivized to pursue punitive measures even when leniency might be more appropriate.

Rebalancing the Scales of Justice

To unravel mass incarceration, and end it, reforms must account for and change the full array of these perverse financial incentives. Moreover, the justice system should be funded fairly and equitably by taxpayers, all of whom are served by it. It should not be funded primarily by the community’s poorest, most marginalized members. Based on that understanding, to end the crisis of punitive enforcement driven by pecuniary motives, policymakers need to identify and undo this self-reinforcing bundle of financial incentives that agencies have become all too reliant on to sustain or top of their budgets. Working together, they must change what is measured and rewarded to shift incentives. That is what will provide true public safety and restore community trust in the criminal justice system.

Jan 16 is Martin Luther King, Jr. Day, but the commitment of the Safety and Justice Challenge (SJC) to improving racial and ethnic equity in the jail system runs year-round.

With that in mind, here are several blogs on the theme of racial and ethnic justice featuring members of SJC from the last year.

Reckoning with the Legacy of the Tulsa Race Massacre

Members of the Safety and Justice Challenge learned during their annual convening in January 2022 about how Tulsa, Oklahoma has struggled to reckon with the legacy of its 1921 Race Massacre. The discussion showed how Tulsa’s history impacts its present. It also demonstrated the complexity any jurisdiction must face in navigating ongoing inequities as it seeks to lower its jail populations sustainably and fairly. Madison Dawkins, manager of local partnerships at the Square One Project, chaired the discussion.

Two years since George Floyd, The Challenge of Sustaining Momentum for Reform

May 25, 2020 marked two years since Minneapolis Police Officer Derek Chauvin murdered George Floyd. Following his death, people protested racial injustice in the criminal justice system across the country and beyond, and as a result, some cities and counties pledged to make significant changes to law enforcement. But in conversations with people involved with the Safety and Justice Challenge, many reflected on how not enough has changed in two years since Mr. Floyd’s death and how the landscape for criminal justice reforms is now becoming more challenging. And yet, they also pointed to areas of progress.

A New “Tap-In” Center Aims to Restore Community Trust

There is new hope in St. Louis County for people afraid to move on with their lives or engage with the criminal justice system because of unresolved warrants, municipal code violations, or having missed a court date. The “tap-in” center, which is part of a national effort to lower jail populations in jurisdictions across the country as part of the Safety and Justice Challenge, aids in responding to concerns raised by the Department of Justice about racial injustice related to municipal court practices in its 2015 investigation into the Ferguson Police Department which is located in the northern part of St. Louis County.

Linking Mass Incarceration to Black History in Los Angeles and Beyond

Members of the Safety and Justice Challenge grappled with questions about how mass incarceration is linked to Black history at a recent fireside chat during the annual convening of SJC network members. Bria L. Gillum, Senior Program Officer, Criminal Justice with the MacArthur Foundation hosted the conversation with Kelly Lytle Hernandez, a professor of History and African American Studies at University of California, Los Angeles. She is also a member of the SJC Advisory Council and a MacArthur Fellow.

A Deeper Look at Racial Disparity Data in Jails

Cities and counties participating in the Safety and Justice Challenge significantly reduced their jail populations over the past few years – both prior to and following the COVID-19 pandemic. Despite that progress, racial and ethnic disparities in jails persist. In early 2022, the SJC selected four jurisdictions to join a new Racial Equity Cohort based on proposals that explicitly focus on racial and ethnic equity in the criminal justice system; center lived experiences of Black, Indigenous, Latinx, and other people of color; and emphasize the SJC Community Engagement Pillars of authenticity, accessibility and transparency, respect for diversity, and commitment to ongoing engagement. Reagan Daly and Stephanie Rosoff with the Institute for State and Local Governance investigate the data.

Focusing on Racial Equity in the Justice System

Hear from SJC sites in Philadelphia, Chicago and New Orleans about their efforts as part of the new racial equity cohort.

Finding Our Voice to Reduce Native American Incarceration Across SJC Sites

November is Native American Heritage month. It gives a platform for Native people in the United States of America to share their culture, traditions, music, crafts, dance, and ways and concepts of life. It is also an appropriate time to highlight the overrepresentation of Indigenous people in jails across the country while actively pursuing solutions. Michaela Seiber, MPH, blogged about a recent trip she took to Pima County, Arizona, from Minnehaha County in South Dakota to see how Pima County’s SJC initiative is working with the community to reduce incarceration and improve health outcomes.

A Q&A on Hispanic Heritage Month with 70 Million Creator Juleyka Lantigua

70 Million, LWC Studios’ podcast about criminal justice reform, was nominated for a Peabody Award and won several others. Juleyka reflects on the rising-majority population of the country, the local impact of jails, and the role of racial and ethnic equity in reform.

Counties Enhancing Racial Equity in the Criminal Justice System through Grantmaking

The National Association of Counties, in partnership with the National Criminal Justice Association and with support from the Bureau of Justice Assistance, has released a toolkit for counties interested in addressing racial and ethnic disparities in the criminal legal system through grantmaking. The toolkit outlines eight principles, developed by a working group of county stakeholders, state administering agency representatives, and community-led organization leaders, to help enhance equity in the criminal legal system. It features several communities participating in the Safety and Justice Challenge.

A new national report from the John D. and Catherine T. MacArthur Foundation highlights that Native people are disproportionately incarcerated in the United States.

The report, commissioned as part of the Safety and Justice Challenge (SJC), shows that in states with higher Native populations, incarceration rates are up to seven times that of White people, and that Native people are sentenced more harshly than White, African American, and Hispanic individuals. Moreover, American Indians and Alaska Natives (AI/AN) were incarcerated at a rate 38 percent higher than the national average and were overrepresented in the prison population in 19 states compared to any other race and ethnicity.

The full report can be read here. A variety of media covered the report’s launch including Montana Public Radio,Wisconsin Gannett, Native News Online, the Lakota Times and Cheyenne Arapaho Tribal Tribune.

“Like many modern challenges in Indian Country, over-incarceration of Indigenous people is intimately tied to colonial violence and upheld by policies throughout the years,” said Dr. Ciara Hansen, currently a clinical psychologist in the Iina’ Counseling Services department at Northern Navajo Medical Center and author of the report. “Paternalistic solutions applied to Native communities often miss the important step of seeking to understand the issue from the community’s perspective. This report offers a starting point for discussion and knowledge sharing.”

“The report not only highlights the painful and unacceptable treatment of Native people in the criminal justice system, but also underscores the overreliance on incarceration to solve community issues,” said Bria Gillum, a senior program officer at MacArthur.  “It is our hope that the report contributes to the growing conversation about racial disparities in this broken system, sparks deeper collaboration between state and tribal agencies, and leads to investments in diversion services that can end this devastating cycle.”

The national report is authored by Dr. Desiree L. Fox (Bitterroot Salish), Dr. Ciara D. Hansen, (Shawnee/Cherokee), and Ann Miller, an attorney with the Tribal Defenders Office of the Confederated Salish and Kootenai Tribes on the Flathead Reservation in Montana.

Additional key findings in the report include:

• According to the Bureau of Justice Statistics, 45 percent of people incarcerated in tribal jails were being held pretrial, and pretrial detention rose by at least by 80 percent since 1999. The average length of stay doubled from 2002 to 2018.
  • Additionally, the most serious offense for 16 percent of people held in tribal jails was public intoxication and 15 percent were held for drug related or DUI charges.
  • Native youth are more likely to face conviction in adult court, especially for drug-related crimes.
• The number of jails in Indian Country has increased by 25 percent since 2000, which has led to filling them with more people charged and held with petty crimes for longer periods of time.
• The 2020 Bureau of Justice Statistics report showed tribal jail incarceration rates steadily increased by 60 percent since 2000. The most recent report from the Bureau of Justice Statistics, however, has shown a significant reduction of incarceration in tribal jails during the COVID-19 pandemic.

The report demonstrates the need for ongoing research to decrease the rates of arrests and incarcerations of Native people. More research is particularly needed to better understand the experiences of Native people and the systemic change necessary to meaningfully improve outcomes.

The recommendations put forth by the authors of the report include:

• Empower tribal justice systems which are better positioned to intervene because they offer services that are culturally relevant, restorative, and fair.
• Change the trajectory before, or even after, Native people are pulled into state and federal systems by addressing the underlying issues that bring people into the criminal justice system and the collateral consequences that pull them back in.
• Provide funding to appoint counsel to the indigent, tribally based public defender offices to support positive change that are most congruent with traditional, restorative practices.
• Encourage tribal public defenders to work with their clients in the context of their community—their families, their elders, their values, and their definitions of success.

The report is based on data from several surveys and sources, including the Indian Law and Order Commission, the Office of Juvenile Justice and Delinquency Prevention, the Bureau of Justice Statistics, and others. The full list of sources can be found at the end of the report.

Jurisdictions across the country can learn from efforts to study probation violations in-depth. A new report on probation violations as a driver of jail time in St. Louis County, Missouri shows that expediated probation programs have much to offer and can work to reduce racial and ethnic disparities in the system.

Probation matters. More people are under probation supervision in America than any other correctional sanction. One in 84 adult U.S. residents is on probation right now, which increases the risk for later imprisonment. As an initiative of the John D. and Catherine T. MacArthur Foundation, the Safety and Justice Challenge (SJC) is seeking to reduce jail populations. So, looking at probation violations is an important step toward doing that. Most of the current research on jail reform has considered the pretrial population, but we know less about individuals returned to jail for a probation technical violation, which includes failure to meet the conditions of probation supervision (e.g., maintaining employment, regular office visits, and routine drug tests).

We looked at the probation revocation process in St. Louis County, an SJC site. Before joining the SJC, the county’s jail population had been either near or over capacity for over a decade. But it has reduced average jail populations by 30% since 2016 through a series of measures.

We looked at how long people who violated probation in St. Louis County were detained in jail, and race differences in jail admission and length of stay trends. We also used a racial equity framework for the study to see if jail reform efforts harmed or helped people of color. As part of this work, we evaluated the county’s Expedited Probation Program (EPP). This program was implemented as part of the SJC reform efforts and is designed to speed up case processing and provide services for people detained on a probation violation.

We found that individuals who are booked into jail for probation violations represent a small part of the total jail population in St. Louis County, but they have substantially longer lengths of stay than other groups. The length of stay for people on probation declined by 33% from 2016 to 2019, from 44 to 30 days. In comparison, the average length of stay for the total jail population remained stable at 23 days in 2016 and 2019.

While Black individuals on probation had longer lengths of stay than White individuals, we found that some racial disparities in length of stay have declined over time. Still, racial disparities remain in the jail population. While the county population is about two-thirds White and one-fourth Black, the 2016 and 2019 jail probation population was made up of about 54% Black individuals compared to about 45% White individuals.

Meanwhile, the EPP program provides evidence that reforms can reduce the length of time people on probation are in jail and an opportunity to learn about potential best practices. Broadly, the program is designed to expedite the revocation process to divert individuals from jail to community-based treatment. Unlike most correctional interventions, the primary aim of the project is to change how individuals are processed in jail instead of solely expecting individuals in the program to reform based on service provision. Specifically, the goal of the EPP is to have individuals evaluated by a judge and released within 10-12 days of incarceration.

The EPP model integrates evidence-based interventions including: 1) detailed coordination with members of the supervision team such as probation officers, jail case managers, and community treatment staff to ensure a continuum of care; 2) case coordination with a probation officer embedded in the jail; 3) treatment plans presented to judges for approval (reducing delays in the hearing process); and 4) warm handoffs and linkages to services.

The Expedited Probation Program (EPP) achieved its goal of reducing the number of days individuals admitted to the program were detained in jail, and these reductions were substantial. On average, participants spent 28 days in jail compared to 65 days among people in a comparisons group who were not in the program. Further, the processing time continued to decline as the program progressed.

In addition, the implementation of the program led to a larger decline in the length of stay for Black individuals in the program. Although this effect needs to be explored in more detail, there is potential evidence that this type of change to case processing may be able to attenuate some of the racial disparities inherent in this part of the criminal legal system.

While the program was successful in reducing the number of days people were detained in jail, the recidivism rates were higher for the EPP group than for the comparison group. Interviews with program staff suggest that there is substantial stress and barriers to compliance with the court-mandated programming associated with the intervention, which may have led to higher rates of technical violations, like failure to meet conditions of substance abuse treatment or missing appointments, among the intervention group. Emerging from our interviews with stakeholders and system-involved people also indicated that people on probation have substantial unmet needs, many of which were related to substance use disorders and poverty. COVID-19 also has changed how the probation office Interacts with clients, shifting to a community-based model in which probation officers meet clients in the community or over Zoom. There is general support for these changes. In addition, many of the participants appreciated the ability to interact with the court virtually for probation violation hearings.

Overall, the results of the EPP program suggest that collaborative processes can be instituted to reduce the time spent in jail for a probation violation. That noted, to reduce the rates of recidivism among this group, more work needs to be conducted to better understand the needs of people released and how to best provide services to this group that facilitates long-term integration.