Topic: Incarceration Trends

Each year roughly 200,000 active-duty service members leave the United States military and return to civilian life. While most navigate this transition successfully, many struggle with mental health and substance use disorders, the effects of traumatic brain injury, homelessness, and criminality. One in three veterans report having been arrested and booked into jail at least once, a rate significantly higher than for non-veterans.

People who have served this nation in our armed forces have sacrificed to protect us. It is time for us to better recognize that sacrifice and take steps to ensure our veterans are treated fairly by the justice system. Veterans who encounter the criminal justice system should receive interventions that can help them resume their responsibilities to their families, their communities, and their country.

Last year the Council on Criminal Justice launched a national effort to help make that happen. Its Veterans Justice Commission, on which I serve, is chaired by former U.S. Defense Secretary and U.S. Senator Chuck Hagel and also includes former Defense Secretary and White House Chief of Staff Leon Panetta, the Chief Justice of the Georgia Supreme Court, two formerly incarcerated veterans, and other top military, veterans, and criminal justice leaders.

Our mission is straightforward: to examine veterans’ involvement in the criminal justice system and the risk factors that drive it, and to develop recommendations for evidence-based policy changes that enhance safety, health, and justice.

My fellow members and I have learned a lot since embarking on this endeavor. Above all, we have discovered that despite a patchwork of interventions designed to help veterans across the country, too many are falling through the cracks. Here is one example: while Veterans treatment courts have been a pioneering front-end intervention, just 14 percent of counties operate one, and eligibility requirements for such courts exclude many veterans.

Another challenge is that veterans who become incarcerated lose access to health care from the Department of Veterans Affairs (VA), which prevents them from receiving the specialized treatment they need to address post-traumatic stress disorder (PTSD) or other problems. The suicide rate for veterans is approximately 1.5 times higher than the rate among the general population, and it is especially high for veterans leaving incarceration.

In September, the commission released a policy roadmap that encourages the expansion of alternatives to prosecution and incarceration for justice-involved veterans. This blueprint outlines alternative sentencing options that not only recognize veterans’ service, but also consider the fact that their criminal behavior may have been influenced by that service. The options, which include expanded use of pretrial supervision and probation in lieu of a record of conviction or incarceration, are grounded in evidence-based practices. The commission also recommends allowing veterans whose cases are processed through such options to pursue record expungement.

Based on the policy framework a model policy called the Veterans Justice was adopted. This version of the framework will be shared with state legislatures as a blueprint for action on the issue. The policy framework reflects an initial set of recommendations released by the commission in March. Additional recommendations targeting veterans’ transition from service to civilian life will be forthcoming early next year.

As jurisdictions consider this model policy framework, my fellow commissioners and I hope the federal government will incentivize the widespread adoption and effective implementation of these reforms. Many of the framework’s elements will require updating existing systems, training personnel, and conducting ongoing evaluations. Federal funding can serve as a critical resource for jurisdictions pursuing these vital reforms, which will ensure that veterans nationwide can access correctional interventions designed for their specific needs.

I also hope policymakers at the state and federal level consider this disturbing reality: We are prosecuting and imprisoning veterans while denying them the care and consideration they need and deserve. And we are doing so even though their criminal justice involvement is often due, at least in part, to their willingness to fight for their country. As a result, we are not only doing a disservice to veterans, but also jeopardizing the safety of the public they once fought to protect.

The challenge of veterans returning home from wars and landing in the criminal justice system is not new. But our response can be.

One in four women experience domestic violence in their lifetime. But three in four women who have been, or are, incarcerated have experienced it. Despite these disparately high rates among incarcerated women, jails too often lack organized domestic violence-specific services for women. Very few jails have programs to address women’s needs related to abuse and trauma. It is time to change that because more research shows providing such services is a good idea. They can help increase the success of reentry services and improve well-being. And that is an important part of efforts to reduce jail populations across the country.

Peer-support groups are the focus of a new report co-authored by survivors. It is a project of the National Center for Victims of Crime with support from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge. Along with our panel of experts with lived experience, we convened a listening session to discuss how to create domestic violence peer-support groups in jails. The experts from this working group identified five principles to guide the development of domestic violence peer-support groups for women who are incarcerated. This is not an exhaustive list, but a starting point for engagement and implementation in institutions. We are hopeful that communities will want to partner with us to embed these principles.

Principle 1: The jail intake process should screen for whether a woman is a domestic violence survivor.

The intake process for women who are incarcerated should include an assessment to detect past domestic violence victimization, and jails should utilize gender-responsive assessment tools for this. Still, women who are incarcerated may not be ready to fully disclose their histories of domestic violence victimization when they arrive at a facility. Jails, therefore, should offer continuous opportunities for women to disclose information about their past.

Principle 2: Implement comprehensive and easily accessible compensation to peer domestic violence guides for their work. 

It is vital that women serving as domestic violence peer guides are compensated, financially or otherwise, for their service. Women should be compensated regardless of whether they serve as peer guides during or after their incarceration. Furthermore, work as a domestic violence peer guide while incarcerated, at a minimum, should constitute an internship with a partnering domestic violence program and qualify as requisite experience for a paid position with the organization upon release. Building relationships with external domestic violence organizations can also help institutions strengthen their policies around working with women who are survivors of domestic violence.

Principle 3: Supportive partnership and collaboration between peer guides and external domestic violence programs is needed. 

In addition to bringing domestic violence programming into jails, community-based domestic violence providers should train incarcerated victims and survivors to serve as peer guides. Community-based domestic violence programs should hire formerly incarcerated domestic violence survivors to work with domestic violence peer-support groups in jails and ensure that peer-support specialists receive just compensation. This duality of lived experience is necessary for peer guides to fully understand the traumas that have occurred before, during, and even after incarceration, and allows the guides to provide stronger and more relevant support for domestic violence victims who are incarcerated.

Principle 4: Ensure access to holistic care to treat the whole person.

Domestic violence peer-support programs in jails should engage holistically with incarcerated victims and survivors. Trauma is an emotional response to an intense event that threatens or causes harm. It is often the result of an overwhelming amount of stress that exceeds one’s ability to cope with the emotions involved with that experience. Educating incarcerated victims and survivors about trauma can help women realize that they are recovering from a serious stressor and learn more about their own stress responses and coping strategies, allowing them to build a sense of control over those responses. Trauma education can also minimize self-blame and build community among victims and survivors through a better understanding of their shared experiences. 

Principle 5: Correctional officers (CO) who transport women to and oversee domestic violence peer-support groups should be trauma-informed and trained on the dynamics of domestic violence.

The majority of individuals who interface with the criminal justice system, including jails, have been exposed to traumatic events, like domestic violence. However, institutional confinement, like jail, is not intended to house victims and often does not acknowledge or recognize that individuals involved in the criminal justice system are often victims before they committed their offense. Instead, incarceration is another traumatic event. Being locked in a cell is one of the most horrific, stressful experiences a person can endure. The act of locking another human being in a cell is also traumatic and potentially dangerous to the correctional staff. Incarcerated people and correctional staff alike are traumatized, forcing them to react to the world around them from a position of fear, making them more likely to respond with aggression. The trauma shared by staff and people who are incarcerated exists in a constant feedback loop in which no one feels safe.

Given the prevalence of preexisting victimization and ongoing trauma, especially in women who are incarcerated, jails need to embrace a trauma-informed approach and culture. A key part of creating this kind of environment is providing ongoing training to ensure that correctional officers understand the impact and prevalence of trauma and its pervasive effects on the brain and body, as well as the specific dynamics of domestic violence. Doing so can help to break the cycle of trauma for both women who are incarcerated and the staff who work with them.

The report would not have been possible without the expertise of our co-authors, Tanisha Murden and Rylinda Rhodes. We would like to thank them for sharing their knowledge, ideas, and experiences, as well as helping us create a more healing space for all survivors. We hope communities will find the recommendations in the report useful and explore implementing them in their policies. Just because someone is incarcerated does not mean they are not also victims of crime. In the case of domestic violence survivors, often the very actions that resulted in someone’s incarceration could have stemmed from self-defense or another means of escaping an abusive situation. It is incumbent on us, as a society, to support victims of crime in all circumstances.

If they go to jail at all, most people in America only do so once. But in communities across the country, there is often a small group of people who account for a large number of jail admissions. They also account for a large portion of total jail expenditures. A new two-year research project sought to better understand this population in three communities and makes policy recommendations from which others can learn. The John D. and Catherine T. MacArthur Foundation funded the study as part of their Safety and Justice Challenge, which seeks to reduce jail populations.

How Did the Researchers Work and What Did They Find?

The study incorporated quantitative and qualitative methods. Researchers drilled into at least eight years’-worth of data from each of three communities to identify and describe the population of people with frequent jail contact. They also conducted interviews with 27 practitioners across a range of service sectors and 23 people with lived experience. Finally, they used both the quantitative and qualitative data to examine the strategies used by each community participating in the study to reduce jail contact.

The research found people with frequent bookings accounted for about one-half of all the bookings that occurred during the study period. Across communities participating in the study, people with frequent jail contact account for a majority of bookings, but account for a minority of the people booked. People of color and people with behavioral health needs are overrepresented. The study’s findings also emphasize complex interrelationships between race and ethnicity, gender, and behavioral health needs. They point to potential disconnects between the perceived and actual characteristics of people with frequent jail contact.

Different communities used different strategies to aid people with frequent jail contact but most did not have strategies intended for that exclusive purpose. Rather, they implemented strategies intended to aid everyone. All participating communities selected diversion strategies for people with behavioral health conditions as their primary intervention for the study’s focus. And the study found that behavioral health diversion strategies may improve outcomes for people with frequent jail contact. More broadly, the study findings underscore the importance of comprehensive community-based resources to support the success of behavioral health diversion programs. Findings also show the need for strategies that cross many systems and levels of policy and practice.

Policy Recommendations

Based upon the study findings, the researchers have nine policy recommendations:

1. Create a Data Sharing Ecosystem

To meet the complex needs of people with frequent jail contact—especially individuals with behavioral health challenges—criminal legal and behavioral health systems need a common data sharing language and platform. Ideally, the common language and platform would extend to other systems as well, such as social and emergency services.

2. Establish Formal, Jurisdiction-Specific Definitions

Jurisdictions should develop formal definitions or criteria to support the consistent operationalization and identification of people with frequent jail contact. These definitions should drive the development and implementation of related policies.

3. Use Validated Behavioral Health Screening Tools

Consistent with the standards for health services in jails and prisons, universal screening using validated screening tools should take place during the intake process at each door into and away from the criminal legal system.

4. Implement Psychiatric Advanced Directives

Psychiatric advance directives are intended to enable self-determined treatment, and effective and clear communication from a past and competent self, for individuals who are at risk of losing decisional capacity at some point in the future.

5. Facilitate Jail In-Reach Programs

Trust and engagement are key to successful reentry for people with frequent jail contact. Jail in-reach programs allow practitioners to meet with people in the jail before release, assess their needs when back in the community, develop a plan to meet those needs, identify how community providers can assist, and provide coordinated support as people transition into the community.

6. Increase Peer Support Programs

Peer support programs should be a key feature of policies designed to reduce frequent jail contact. While the focus is typically on lived experience with behavioral health systems, people with lived experience of the criminal legal system, specifically, share a common understanding of the challenges and resources necessary for successful reentry.

7. Improve Access to Housing

Affordable housing is scarce in most communities. Providing safe, sustainable, and supportive housing for people involved in the criminal legal system with behavioral health conditions can be a challenge, but it is critical to reducing frequent jail contact.

8. Increase Utilization of Community-Based Services

When possible, people should be given the necessary supports in navigating the continuum of care. In addition to warm handoffs from one service provider or program to another, other examples include a shared video chat with a new provider or engaging peer support services during transitions.

9. Center and Evaluate Efforts for Racial Equity 

Evaluations suggest that efforts to reduce frequent jail contact have had limited success in improving racial equity in this population, likely due to multiple, intersecting factors. Communities should work to mitigate systemic racism through the operations of their criminal legal and behavioral health services for people with frequent jail contact and examine the success of these efforts through formal evaluations.

The last several years have ushered in a seismic shift to Los Angeles County’s criminal justice landscape. Home to the world’s largest jail system, LA County achieved an unprecedented 25 percent decline in its jail population–the largest in the nation during the height of the COVID-19 pandemic. While the overall number of people in jail decreased, the percentage of people of color and people with mental health needs behind bars in LA increased. This changing composition mirrored a national trend and illustrated a key lesson: without a parallel effort to promote racial equity and provide safe, community-based care for people who need it, reducing jail populations may actually worsen disparities.

To address this, LA County—a grantee in the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge—announced a new vision of “Care First, Jails Last” and deepened its investment in community-based support for vulnerable populations and alternatives to incarceration. LA County also launched the Justice, Care, and Opportunities Department to consolidate most of these efforts under one roof.

As members of the Center for Justice Innovation (The Center) team, we are technical assistance partners in the Safety and Justice Challenge and worked with LA County to expand their alternatives to incarceration with particular emphasis on equity. Inspired by the learnings from this work—and grounded in our long history of launching and operating diversion programs—our West Coast Initiatives team authored a new report. The report offers concrete insights to inform the development of equitable diversion programming around the country. For practitioners seeking to create diversion programs, this document offers advice on designing early alternatives to incarceration, leveraging data to identify and connect with target populations, and working towards racially equitable outcomes.

We collaborated with LA County to launch two initiatives—the Rapid Diversion Program, which is court-based, and the Prefiling Diversion Program, which is based in law enforcement stations. Both programs aim to reduce the use of jail by connecting participants to safe, appropriate, and community-based care.

While successful diversion programs can safely reduce the use of incarceration, special care must be taken to ensure that these programs are carried out in an equitable way. We hope the insights of the report can provide guidance for developing diversion initiatives that bridge the gap between legal systems and communities while caring for vulnerable populations.

The first section of the report offers tips for developing the essential components of an early diversion program. Recommendations include:

• Create infrastructure to divert people at the early stages of a case.
• When determining eligibility criteria, prioritize the client profile over charges. When creating diversion programs, justice partners typically determine charge types to include and exclude in programs. Instead, we suggest program partners determine the profile of people they want to serve—for example, mental health, people with three or more arrests/system contacts, young people, race and ethnic groups that are disproportionately represented, etc.—and let that guide program development.
• Make charge-based exclusions (sex offenses) presumptively instead of categorically ineligible. This means that instead of having categorical exclusions based on what people may be charged with, presume people are eligible for programs and, when someone is facing a presumptively ineligible charge, allow for discussion on a case-by-case basis.
• Even within the same municipality, recognize that each diversion site may operate differently and have a distinct culture.
• Seek out cross-sector collaborations and expertise in the program planning phase.

The opportunity to provide community-based care to people with unmet social service needs can happen at stages that far precede a criminal conviction—any time before a criminal case is adjudicated, and indeed, even before criminal charges are filed. For example, LA’s Prefiling and Rapid Diversion Programs utilize police stations and courts as potential off-ramps from the traditional legal system path.

Both programs pursue a common objective: to expand early interventions for people with unmet needs rather than continued detention or release without any supportive resources. To accomplish this, LA located behavioral health care professionals in the jails and courthouse. For Prefiling Diversion, this meant physically converting unused breathalyzer rooms and offices into spaces for care by placing service navigators in the station. Service navigators find programs and help people enroll in them and understand how to get connected to the program (i.e. when and where to go for intake, whom to call for questions). The Rapid Diversion Program embedded pairs of service navigators and clinicians in courthouses.

Four roles can improve the diversion infrastructure:

• Mental Health Clinician—screens candidates for behavioral health conditions and appropriate level of services for the behavioral health program someone will need.
• Service Navigator—identifies healthcare and social service needs, finds local programs and providers, and connects participants to these organizations and services.
• Case Manager—supports participants one-on-one. Often the main point of contact for program participants, case managers provide referrals for continuing needs, such as education, employment resources, benefits, and housing, and help participants stay engaged in the program.
• Driver—takes participants to their agreed upon destinations, oftentimes directly from the police station or courthouse to appointments, referred services, and future court dates. This is especially important for jurisdictions where transportation equity is a challenge. Although the driver’s primary role is to transport program participants, the driver frequently interacts with program participants and serves as an additional level of support.

Building these roles into any diversion program—and locating these professionals at the booking station or courthouse where possible—can help ensure that people with specialized knowledge connect participants to resources in a coordinated way. Interactions with program staff are also supportive touchpoints, which is made possible by hiring staff who understand the needs of participants and want to help. This includes people with lived experiences (including families impacted by the criminal justice system), previous program graduates, and people with clinical backgrounds. Remaining intentional about including and staffing each role, especially case managers and drivers who interact with participants frequently—can make even the mandatory components of diversion programs motivational.

The second section of the report includes recommendations for using data to promote equitable practices for diversion. The report stresses the need for prioritizing data collection as a critical tool in ensuring equity. Data analysis can help to identify underlying needs and shape the design process prior to program launch. After launch, a consistent flow of data among partners is necessary to sustain the program and gives planners the ability to adjust the program as needed.

Recommendations include:

• Use relevant and detailed data at the planning stage to ensure equity and effectiveness of programming.
• Review program performance data on an ongoing basis to ensure the right people are being served.
• Make data planning a team effort.
• Clarify roles and responsibilities around data management.

When launching a program meant to achieve equity, program planners should learn how to meet the needs of the desired population. Instead of looking at the types of charges to divert, examine who is being charged and any trends that can inform the demographic to serve (e.g. people who are unhoused but arrested for quality of life offenses, or people arrested on a drug offense but who are excluded based on prior drug convictions). Having a better understanding of common issues—not just charges—that people face can radically shape programming.

In addition to using data on the front end of design, the report recommends reviewing program performance data on an ongoing basis to ensure program efficacy and equity. Recurring reviews should include program staff who can speak to participants’ growth in the programs, especially to help the program collaborators understand ways to improve and sustain the program so it continues to have its intended impact.

Many partners in Los Angeles County make the Prefiling and Rapid Diversion Programs possible, including the LA County’s Justice Care, and Opportunities Department,the Offices of the Los Angeles County Public Defender and Alternate Defender, the Los Angeles City Attorney’s Office, and Los Angeles County District Attorney’s Office, the Department of Mental Health, Project 180, and Exodus Recovery, Inc.