Topic: Human Toll of Jail

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 John D. and Catherine T. 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.

Bria asked Kelly how she uses her journey as a historian and professor to think about mass incarceration. Kelly began by acknowledging that the land she was dialing in from in Los Angeles was historically colonized. She talked about the Tongva Basin in Los Angeles, home to the Chumash and Gabrielino peoples. Mass incarceration, Kelly said, is “the current chapter in a long book of inequity here in the United States and in the colonies that predated it.”

Academics like Angela Davis have also shown how mass incarceration emerged out of Jim Crow, which arose from enslavement, Kelly said. She recommended Imani Perry’s South to America: A Journey Below the Mason Dixon to Understand the Soul of a Nation. The book “helps us to understand how so much of our contemporary life, our institutions, our families, our culture is really anchored in the experience of Black enslavement,” she said. The United States was created through a particular form of colonization—the transfer of a European population to the North American continent, Kelly said. The intention was to “remove, erase, and replace the Indigenous population,” Kelly said. Scholars call it “native elimination.” Mass incarceration can be seen in that arc of elimination in   U.S history, Kelly said. It is about “removing unwanted populations” from the “white settler society.”

Bria asked Kelly how current conversations about criminal justice policy fit into that lens. For example, there are conversations happening today about reverting to policies from the 1980s and 1990s, like bringing back cash bail or arresting people for crimes of poverty. Bria asked: “What lessons can history teach us about criminal justice reform, and how can we use the history of this country to impact change?”

Kelly said that white supremacy is resilient and adaptable, cautioning against supposed reform efforts if they end up harming colonized and marginalized groups. For example, Kelly referenced Indian Boarding Schools as a so-called reform effort against genocide. She referenced Jim Crow laws as supposed reform efforts against the white backlash against Black emancipation from slavery. We need to monitor the outcomes of reform efforts across time to see if historically marginalized communities are not harmed, Kelly said.

Bria also asked Kelly to reflect on what era the United States is in, now, in 2022. We are transitioning out of an era of mass incarceration, Kelly said. But what comes next is still being defined. We need to listen to the voices and leadership of Black and Indigenous communities “to ensure we have the capacity to build a new society rather than a new regime,” Kelly said. She also called this a “very dangerous moment.”

Kelly spoke about using data to inform those conversations.

“One of the things that we noticed here in Los Angeles – and I’m sure you all were noticing this in other localities across the country – is that data was being used against our communities. We were being told that we always needed a bigger jail or more jails to keep us safe,” she said.

Instead, at UCLA, Kelly worked with community-based organizations in Los Angeles to acquire arrest and jail data. She worked together with those communities to clean up the data, categorize it, give it definitions, and analyze it. Together, they founded the Million Dollar Hoods project, which maps the cost of mass incarceration, documenting that local authorities are spending more than a million dollars annually to incarcerate people in some neighborhoods. The leading charges and causes of arrest in those neighborhoods were narcotics possession and driving under the influence, according to the data. “Both are substance related issues and the community wanted to see a community health response – not incarceration — to those substance related issues,” Kelly said.

The project has also sued the Los Angeles Police Department for data, including 200 boxes of records from the 1980s and 1990s. “We can use these records to document happened during the era of mass incarceration, and how the rise of policing and incarceration extracted much-needed resources from Black communities” Kelly said. Million Dollar Hoods is also collecting oral histories with residents. It’s important to collect people’s stories, Kelly said, to assess the past, understand the present, and imagine a new way forward. “Today, at the end of the age of mass incarceration, we refuse to have our stories overlooked, hidden, or ignored. We are saving our stories, on our terms, to assert a voice in the future to come.”

Bria closed the conversation by asking Kelly to reflect on the work of the Safety and Justice Challenge. The SJC is a diverse network including public defenders, prosecutors, policymakers, city and county leaders, and judges, Bria said. We are entering the third year of a pandemic, and we are continuing to deal with the death of Black, Indigenous, and People of Color people by law enforcement. Bria asked Kelly: “Do you have any recommendations about what we can collectively do to move forward on our criminal justice reform efforts? Taking history as our example, what should we be grappling with?”

Kelly encouraged SJC members to read history, especially to understand the history of criminalization, policing, and incarceration. It documents the many turning points and is a way of opening up the collective imagination about what is next, she said.

Kelly also recommended another book, called Covered with Night—A Story of Murder and Indigenous Justice in Early America by Nicole Eustace. It is a story about the murder of an Indigenous man by a White colonist. The White colonists were eager to be seen as doing justice and proposed killing the White murderer. But Indigenous people halted the process to avoid “greater harm and greater damage.” Instead, they demanded that the murderer pay emotional and financial reparations and that the neighboring white and Indigenous communities use the crisis to build stronger bonds.

“I encourage people to look at that book for an early alternative to punishment,” Kelly said. “I know everyone’s so busy, but maybe on weekends, pick up a chapter here and there to find the alternative histories that ground our radical perspectives and possibilities for what’s to come.”

March is Women’s History Month, and the picture for women in America’s jails remains troubling. Focusing on women in jails is an important part of the work of the Safety and Justice Challenge as it seeks to reduce jail populations across the country. Here are just a few examples of the challenges women face in jail.

We Lock Up More Women Than Any Other Country

Only 4% of the world’s female population lives in the U.S., but the U.S. accounts for 30% of the world’s incarcerated women. Such an alarming disparity should prompt us to consider how our policies and practices are contributing to it. Nearly half of the 231,000 women and girls locked up in the U.S. each day are in local jails. Compared to other countries, the U.S. locks women up at the highest rate on the planet.

Racial Disparities

White women are incarcerated at a rate of 108 people per 100,000, less than half the incarceration rate of Black women. Native women are incarcerated at a rate of 349 people per 100,000. Black women are incarcerated at a rate of 285 people per 100,000.

Unsupportive Environments for Pregnant Women

58,000 pregnant women go to jail annually. But recently published findings from the groundbreaking Pregnancy in Prison Statistics (PIPS) Project and other datasets shed light on a common but rarely discussed experience: being pregnant, postpartum or giving birth while incarcerated. In total, 22 state prison systems, all federal prisons, 6 jails, and 3 youth confinement systems participated in the PIPS Project, a systematic study of pregnancy and its outcomes among incarcerated women. The project shows that being pregnant in jail or prison, or youth confinement, is characterized by a lack of supportive policies and practices. For example, only one-third of prisons and jails had any policy about breastfeeding and lactation. Even where policies supporting lactation did exist, relatively few women were breastfeeding or pumping.

Absence of Reproductive Choice

Two articles recently published in medical journals analyzed incarcerated people’s access to abortion and to permanent and reversible contraception. The studies reveal that abortion and contraception access varies greatly between states — and that abortion access for incarcerated people is related to broader state policies. Even in states that officially allow abortion, many people may be effectively blocked from obtaining the care they need, thanks to insurmountable barriers like self-payment requirements and physical distance from abortion caregivers. The studies make clear that people behind bars often have very few, if any, choices and autonomy when it comes to their reproductive health and decisions.

Rise in Jail Deaths Troubling as Jail Populations Become More Rural and Female

New data show record high deaths of people locked up in jail, as jail populations have shifted toward smaller, rural jails and growing numbers of women. A lack of accountability and acknowledgement of women’s unique disadvantages all but ensures more deaths to come. Women’s jail populations and rural jails are growing together. Between 2004 and 2014, the number of women in jail increased 43 percent in rural counties, while declining 6 percent in urban counties. For decades, jails in non-urban jurisdictions have quietly proliferated, fueled by increases in pretrial detention. Additionally, researchers have found that women entering rural jails are significantly more likely to have co-occurring serious mental illness and substance use disorder, despite being severely under-identified by their jails as having such needs.

Prisons and Jails Separate Millions of Mothers from Their Children

2 million women are jailed in the U.S. each year, and 80% are mothers. Every Mother’s Day, nearly 150,000 incarcerated mothers will spend the day apart from their children. Most of these women are incarcerated for non-violent offenses. Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support. Women incarcerated in the U.S. are disproportionately in jails rather than prisons. Having to leave their children in someone else’s care, these women will be impacted by the brutal side effects of going to jail: Aggravation of mental health problems, a greater risk of suicide, and a much higher likelihood of ending up homeless or deprived of essential financial benefits. Most women who are incarcerated would be better served though alternatives in their communities.

Drug Law Enforcement Appears to Have Driven Women’s Incarceration

After skyrocketing for decades, overall incarceration rates have finally been on a slow decline since 2008. But a closer look at the data reveals a major exception: women. From 2009 to 2018, the number of women in city and county jails increased by 23% — a rise that effectively cancelled out more than 40% of the simultaneous 7.5% decrease in the men’s jail population. Meanwhile, reductions in state and federal prison populations have mostly affected men. Over the past 35 years, total arrests have risen 25% for women, while decreasing 33% for men. The increase among women is largely driven by drugs: During that period, drug related arrests increased nearly 216% for women, compared to 48% for men. Knowing that drug arrests are on the rise, we looked to see if addiction is increasing among women, particularly opioid abuse. We found that although women and men are equally likely to develop a substance use disorder, 57% of those misusing opioids are women. The health toll is enormous: Women entered emergency rooms due to painkiller misuse an average of once every three minutes in 2010. Women’s rising opioid use is also reflected in an almost 600% increase in opioid overdose deaths from 1999 to 2016, compared to a 312% increase for men over the same time frame.

Challenges on Release

1.9 million women are released from prisons and jails every year. Formerly incarcerated women (especially women of color) have higher rates of unemployment and homelessness; and are less likely to have a high school education, compared to formerly incarcerated men.

More on Women in Jail

As strategic allies of the Safety and Justice Challenge, I encourage readers to check out the Prison Policy Initiative’s Women and Gender page, for more of our original research and visualizations, and our research library for work done by other organizations looking at the incarceration of women.

For decades, the United States has responded to social issues like mental health and substance use crises, chronic homelessness, and ongoing cycles of interpersonal violence with jail incarceration rather than pursuing innovative strategies that are better suited to address the root causes of these issues. Jail incarceration has disrupted the lives of millions of people—disproportionately harming Black, Indigenous, and people of color—without improving public safety. There is a better way.

Communities can instead invest in agencies and organizations that address these issues outside the criminal justice system. The proven solutions highlighted in a new report released by the Vera Institute of Justice with support from the Safety and Justice Challenge look beyond jails to promote safe and thriving communities.

To be responsive to residents’ needs and account for the harm caused by incarceration, jurisdictions across the country must look for public safety solutions outside of the criminal justice system. Effectively ending the current dependence on jail incarceration requires an ecosystem of services and supports that enhance the mental, physical, and socioeconomic well-being of the people who have been most marginalized.

The report looks in depth at what methods are working to reduce jail use. They include responding to behavioral health crises without incarceration, using crisis call centers, mobile crisis response teams, crisis stabilization measures and other services instead of police and jails. Incarceration will not address chronic homelessness, but permanent supportive housing can. And some jurisdictions are interrupting cycles of violence without incarceration by adopting a public health approach that includes investment in community violence intervention programs.

Some example programs in cities and counties participating in the SJC include:

• Started in 2021, the Portland Street Response (PSR) in Multnomah County, Oregon, is a specialized mobile crisis response program designed to reduce police interaction with people who are experiencing homelessness and/or behavioral health issues. When a 911 call involving these issues comes in, PSR dispatches specially trained medics alongside peer support specialists who have direct experience with similar challenges. In addition to providing care for non–life-threatening medical issues and connecting people to services, the team may provide transportation to shelters, clinics, or another destination the person being helped selects.
• In Cook County, Illinois, the Westside Community Triage and Wellness Center provides urgent behavioral health care and serves as a hub to connect the neighborhood’s largely Black and Latinx residents to ongoing behavioral health services. In Pima County, Arizona, the Crisis Response Center offers 24/7 access to care resources for people who are experiencing behavioral health crises to avoid jail or emergency room settings.
• In Baltimore, Maryland, the Baltimore Community Mediation Center provides mediation services for people experiencing any stage of conflict, including mediation within jails and prisons for people approaching reentry. To ensure mediation services are accessible, the center partners with other public services and community-based organizations. In 2018, with help from around 60 volunteers, the center held close to 600 mediation sessions at more than 130 different locations around the city.
• In multiple cities around the United States, Cure Violence has reduced shootings by adopting a public health approach called Community Violence Intervention (CVI). It conducts public education campaigns to change attitudes about violence, seeking to build relationships with people who are most likely to engage in violent behavior. It relies on “credible messengers,” people who have lived experience with violence in neighborhoods, to perform outreach and intervention.

The report also focuses on grassroots strategies to elevate community expertise, and on effective collaboration with community-based organizations.

• For example, JustLeadershipUSA in New York City—a strategic ally of the Safety and Justice Challenge—is a power-building movement led by organizers directly impacted by the criminal justice system. In 2020, the organization created the #buildCommunities Platform 2.0, a large-scale vision-building exercise conducted in association with the #CLOSErikers campaign. Over three months, the collaborative convened assemblies in eight different neighborhoods in New York City that had been heavily impacted by incarceration and divestment. Conveners facilitated sessions for groups of residents to present, discuss, and workshop ideas together to identify where investment is needed to improve safety and well-being. The vision contributed to a multi-campaign effort that generated a $391 million city commitment to non–criminal justice system programming and resources.
• In 2019, the Los Angeles County Board of Supervisors established a public-private Work Group on Alternatives to Incarceration. The group convened dozens of representatives from nonprofit organizations, service providers, and state and local governments to explore better responses to the “human conditions” of homelessness, poverty, and behavioral health issues. Their work involved creating a roadmap for solutions that provide care and services first and make jail a last resort, a process that engaged government and community residents to think broadly and boldly about strategies for public safety. The group produced more than 100 recommendations to minimize the use of police and jails.

Vera’s report also highlights why criminal justice system responses to these social issues are not enough. Many current approaches to reducing the use of jails fail to address many of the underlying drivers of jail incarceration that would be better addressed through other agencies, organizations, and community-led efforts—unstable housing, poverty, limited educational opportunities, poor health, and inadequate access to services. Moreover, most current local justice reform approaches also fail to account for the racialized harm caused by decades of investments prioritizing criminal justice system agencies over community-based services and often ignore problematic system practices. These shortcomings limit both the efficacy and the reach of many reform efforts.

Ultimately, a network of community-based services and supports could go a long way to address criminalized behaviors in ways safer and more effective than jails.

October 11, 2021, marks Indigenous Peoples’ Day—a tradition first instituted in Berkeley, California, in 1992 as a counter-celebration to the 500^th anniversary of Christopher Columbus’s arrival in the Americas and the federal holiday honoring him. The goal of Indigenous Peoples’ Day is to recenter Indigenous people’s stories, celebrating their culture and history, and to highlight the grave impact that Columbus and colonialism had on them.

This year, the MacArthur Foundation’s Safety and Justice Challenge (SJC) is using the day to highlight the overrepresentation of Indigenous people in jails across the country while we are also actively pursuing solutions. Some estimates suggest that Indigenous people are jailed at twice the rate of White people in the U.S. We spoke to Indigenous people working to reform local criminal justice systems through SJC to explore how we can all work to reduce Indigenous populations in jails.

Carolyn Olson works in the state attorney’s office in Pennington County in South Dakota. She identifies as biracial, Indigenous (from the Anishinaabe Monacan, and Eastern Band Cherokee tribes) and White, and serves as the local SJC community liaison attorney. Census takers estimate that the Native American population of Pennington County is between 10 and 25 percent, but the jail population in Pennington County is 55 percent Indigenous.

“It’s unacceptable, the disparity,” Carolyn said. “It’s way too high.”

Carolyn spent 18 years working as a prosecutor in Pennington County and has seen how Indigenous people are disproportionately impacted by the criminal justice system there. Now Carolyn is spending her time connecting system-impacted Indigenous individuals with existing and emerging Indigenous resources in the area, so that they can better access services to help them heal, overcome addiction and trauma, and stay out of jail.

Carolyn has worked with an Indigenous-focused group called I. Am. Legacy which was founded by Erik and Morgan Bringswhite to build trust in the county and on neighboring tribal reservations. I. Am. Legacy offers culturally relevant programming for people who are involved with the criminal justice system—particularly those who might have encountered law enforcement because of an underlying behavioral health issue, like substance abuse disorders. I. Am. Legacy helps people reconnect with their culture as part of their work to overcome trauma and the root sources of their substance abuse disorder. In addition, Carolyn has also built bridges with criminal justice system programs, law enforcement, as well as other Indigenous-rooted services.

“As a Native person working in the criminal justice system for so long, I really do think systemic racism plays a big role in the way the system was set up and operates,” Carolyn said. “The volume of cases coming through the system means that hardworking, well-intentioned people don’t have time to reflect on why things are happening. The work I’ve been doing is to get people to see that historical trauma impacts Indigenous people who go through the system and work to overcome things like substance abuse disorders. The goal is to connect people to culturally rooted services to overcome some of that, and it’s starting to have an impact.”

Char Green-Maximo recently left her position as the SJC community engagement coordinator in Minnehaha County, South Dakota, to join South Dakota Urban Indian Health, which provides culturally based mental health and substance use treatment, mentoring, arts programs, and other services to Indigenous people. “Judges are referring people to the services, and they are starting to have an impact,” Char said.

Originally from Fort Peck, Montana, Char is from the Nakoda and Dakota tribes. She has an older brother who spent time incarcerated, and while she knew about the overrepresentation of Indigenous people in prisons and jails, she did not realize the impact on people’s lives until she visited him.

“I went to see him, and I always knew the rates of imprisonment for Indigenous men were high, but that was the first time I saw so many Native men together,” she said. “And it was just mind-blowing. I went from reading a number to seeing the people, and it was just a whole different thing. It’s just a lot to take in when you consider the families impacted.”

Char meets often with law enforcement in the county as part of her work. While there has been an occasional Indigenous person in the police department, and there is one Indigenous judge, locally, most people working in law enforcement and the criminal justice system are White.

“They see the overrepresentation of Indigenous people, but it’s hard to soak it in, because most of them didn’t grow up by reservations or around the Native American population, so they don’t know anybody, personally, like that,” Char said. “The only time they’re interacting with Indigenous people is when they’re arresting them. I think sustained training for law enforcement would help them understand the deeper issues that contribute to some of the issues. And I don’t mean a two-day training but ongoing work. These issues often traumatize people as children and take time and training to understand over a long period as you see the behaviors coming out in response to stimuli.”

“They want to recruit more Indigenous officers, but it’s about forming more authentic relationships in those communities earlier so that people know you more and trust you more,” she added.

In Missoula County, Montana, county participating in SJC, Dr. Desiree Fox and Dr. Ciara Hansen are clinical psychologists who are working on an upcoming paper with support from the MacArthur Foundation about the overincarceration of Native Americans. They worked with the Confederated Salish and Kootenai Tribes—of which Desiree is a member—on a project designed to facilitate successful return to the reservation community for Indigenous people who had been incarcerated.

“People were coming back to the reservation and facing sentencing conditions that were impossible to meet,” said Ciara. “People were going back to prison at disproportionate and alarming rates for things like not being able to line up anger management training. It’s impossible to access that training when you’re living on a reservation.”

Ciara and Desiree collaborated with the managing attorney at the Confederated Salish and Kootenai Tribal defender’s office to develop a tribal reentry program based on the “holistic defense” program developed by attorney Robin Steinberg, the founder and former executive director of the Bronx Defenders in New York. Under the holistic defense model, public defenders work in interdisciplinary teams that include social workers, mental health professionals, and others, to address not only a client’s criminal case, but also its causes and wider consequences not just for the individual accused of a crime, but for their families and wider circle. For example, if a person is sent to jail and spends time away from their family, unable to be a parent or work to earn money for the family, then when they return, the consequences can be severe. Likewise, it is possible that a person committed a crime because of a behavioral health issue that can be treated.

In response, Ciara and Desiree began to develop new risk assessment tools that were more sensitive to the physical, social and cultural needs of Indigenous people.

“The typical mainstream predictors for recidivism are not the same as they are for Indigenous people,” said Desiree. “For example, the court system might increase your risk because of where you grew up or how you grew up. And now you’re automatically considered an increased risk of recidivism because you grew up on a reservation. That inherent bias discriminates against Indigenous people in a way that is out of control.”

“While we were doing the program, we realized that all of the risk assessments that were being used to provide insight about the conditions people need in their sentencing were not based on Native populations,” Ciara said.

“Systemic biases in America’s government and legal systems are rooted in historic genocide perpetrated against Native people,” said Dr. Selso Villegas. He is a member of Pima County, Arizona’s Collaborative Community, part of the local SJC’s work. He is also a member of the Tohono O’odham Nation and the Executive Director of the Nation’s Department of Water Resources. Selso thinks that mainstream America believes its in their best interest to not acknowledge the struggles undergone by Native people, perhaps thinking it is better to ignore it rather than deal with it.

“We’re invisible to people because that’s the way many in society want it,” he said. “Not too many people have Native friends. We know we’re not a priority to Pima County. We are sort of a nuisance. For example, my grandson, who has been diagnosed with Fetal Alcohol Disorders, has not had rehabilitation or behavioral training recommended to the Court. He is doing time for the addictions of his parents. We also understand that tribal needs are an afterthought in local, state, and federal government operations.”

Selso recently participated in a wellness day focused on mental health and self-care sponsored by two local tribes. He set up a booth to talk to people about how to go to court to expunge outstanding warrants, the majority being failure to appear warrants. He signed up over 30 tribal members and talked to over 100 people about taking advantage of the Pima County Court program.

“For a short amount of time, we got some people to believe that they had a chance in the legal system,” he said. “And that’s good. I felt like I was contributing to the cause because it will keep at least a hundred people out of jail.”

Selso wants to remind people that Native people may have been forgotten by many, but that Native people take great pride in this country. “It is our home too,” he said. “We are the first Americans.”

Renee Bourque, a citizen of the Mvskoke Nation from Oklahoma, is the Director of the Victim Assistance to Support Tribes (VAST) Center at the National Center for Victims of Crime, a strategic ally of the Safety and Justice Challenge. VAST provides technical assistance and training on Indigenous issues to tribal governments and victims’ service agencies, but also to any federal, state, or non-governmental agency that serves Indigenous people. The initiative’s staff are Indigenous by intention so that they can build relationships across the criminal justice system and Indigenous partners.

Renee attributes historical and generational trauma perpetuated against Indigenous people as a root cause of overrepresentation in the justice system.

“I’ve been working with crime victims in Indian Country for 20 years, and it is so evident that hurt people hurt people,” Renee said. “It’s not uncommon in Indian Country for you to serve a victim one week and then in a couple of months, that person may be the offender, and you might be serving the same family.”

She points to news stories coming out of Canada about the murder of Indigenous children at boarding schools and says it is a moment to build awareness of the harms perpetrated on Indigenous people across North America. Secretary for the Interior Deb Haaland has launched an investigation into the lasting effects of the more than 350 government-funded Indian boarding schools in the United States. The remains of 10 Native American and Alaska Native children were recently returned home to their communities from the Carlisle Indian Industrial School in Pennsylvania.

The school’s chilling motto, like many boarding schools across the United States for Indigenous youth attempting to “Americanize” them, was to “kill the Indian, save the man.”

“Most Americans also don’t realize that there are 574 tribal nations in the United States, with 229 in Alaska, and the rest in the lower 48,” Renee said. Each one is an individual sovereign nation with their own codes, laws, courts, traditions, language, and treaties with the U.S. government.

“We each have a different creation story,” Renee said. “We’re all different. And I think the biggest misnomer is that ‘Indigenous people’ all get lumped into one group. But tribal affiliation for each group is important. It’s most important to me to identify as a ‘Mvskoke’ woman, for example. There’s still so much education that needs to be done.”

Aside from a deeper understanding of the complexity facing Indigenous people in the U.S., the most important thing on October 11, Renee said, is for people across the country to understand the history of these issues.

“It’s only by understanding our history and treatment of our people that we may move forward,” she said. “The treaties must be honored, so that we may honor our ancestors and continue to grow and prosper as the first peoples of this land. We are still here!”