Topic: Incarceration Trends

The FBI’s annual crime stats report is due out on Monday. In more than a quarter century of correctional planning and research, I’ve seen a variety of reactions to these numbers—including plenty of fearmongering and distortion. But there has never been a better time for us to keep a clear head and take an objective look.

What We Already Know

There are a few things we already know even before the FBI releases the data. Overall, serious crimes went down, not up, during the COVID-19 pandemic. Yet polling showed the American public believed there was more crime in the United States than there was a year before. It isn’t true.

One of the reasons crime dropped in 2020 was the COVID-19 lockdown itself, which restricted social interactions that can lead to criminal activity.  But the pandemic also gave many jurisdictions the opportunity to implement needed law enforcement court processing reforms that have resulted in fewer arrests for low-level crimes, fewer jail bookings, and reduced jail and prison populations. All of this occurred without an increase in overall crime rates.

It is true, however, that in many places in the country homicide and shootings increased in 2020. But most other forms of violent crime either have not risen as steeply or have dropped during the same period. Moreover, there is growing evidence that in cities where the homicide rate turned markedly up, the increase is slowing. These are the findings presented in a report by the Council on Criminal Justice, a non-partisan organization that works to advance understanding of the criminal justice policy choices facing the nation, which has been studying the effects of the pandemic on the justice system.

Putting New Data in Historical Perspective

It’s also important to keep a sense of historic perspective looking at the numbers.

Crime rates have dropped by more than half since 1995. Homicides, the rarest of all crimes, have also declined. But as the chart below shows, homicide rates since 1900 have shown a lot of fluctuation, ranging as high as 12 per 100,000.  And the “jump” in homicides from 2019 to 2020 is likely to be from five per 100,000 people to about six per 100,000. That means there was a one-one-hundredth percent change in the homicide rate, which is statistically insignificant and not at all out of line with historic fluctuations.

There have been similar and even higher changes in the homicide rate, for no apparent reason. One must concede that a large portion of changes (up and down) in the homicide rate is random.

That’s not to say we should not be concerned about any increase, or for that matter, any one homicide. But equating a rise in homicides with an increase in crime rates when crime rates have declined is misleading the public.

The Role of Criminal Justice Reforms in Addressing Homicides

Homicides are concerning especially for those people who live in areas where they occur most frequently. But the increase calls for a thoughtful response, including focused law enforcement resources and community-based anti-violence programs. Intervening earlier in the lives of people who commit homicides is a far more positive and effective approach to reducing homicide rates.

Predictably, commentators and editorial boards will be eager to pin the blame for the rise in homicides on a “lax” criminal justice system, “progressive” prosecutors, bail reform, and declining jail and prison populations. They’ll tell you police have lost their motivation to do their jobs because of calls for accountability over violence and racial justice. But that’s not what is likely to be reflected in the numbers.

The solution to homicides is to spend money more smartly on targeted approaches. Not prey on people’s misplaced fears to justify indiscriminate spending on ineffective public policy.

A successful misdemeanor diversion program at a Safety and Justice Challenge site in Durham County, North Carolina, can serve as inspiration for jurisdictions across the country as they seek to reduce jail populations and preserve public safety.

The diversion program shows collaboration between law enforcement and community groups in Durham County, and is the subject of an initial process evaluation by the Urban Institute, which you can download here.

The Urban Institute has not yet completed an accompanying outcome evaluation to see how the perceived impacts reported by relevant stakeholders align with measurable impacts available through local metrics —it is forthcoming in fall of 2021. But the county has been tracking its own numbers and it estimates that just under 800 people have gone through the program since 2014, with 99 percent of participants completing it. Of those, about 95 percent remain out of trouble after a year. Again, the Urban Institute—which is renowned for its rigorous, independent research—has yet to verify those numbers as an independent evaluator of the program. But in the meantime, the county is displaying them on its public-facing website as early evidence of the program’s success.

The Misdemeanor Diversion Program (MDP) began in 2014 to keep children out of the criminal justice system, because North Carolina had such antiquated laws related to minors. Until the ‘Raise the Age’ legislation passed in December, 2019, the state was automatically charging 16 and 17-year-olds as adults in the justice system and giving them adult criminal records.

The program allows law enforcement officers in Durham County to redirect people accused of committing their first misdemeanor crime(s) to community-based services in lieu of citation or arrest. What is unique about the program is that it occurs prearrest and pre-charge, meaning someone law enforcement officers may believe has committed a crime is not arrested or charged and does not formally enter the justice system in any way.

The program expanded to benefit adults up to 26, with older adults at law enforcement discretion. And other jurisdictions have replicated it across the state. It was based on a simple foundational principle: The need to avoid involvement in the justice system, where possible. It aimed to be as unrestrictive as possible while providing participants with the support necessary to move forward positively.

In the first week, the program got just two referrals. But a key element of the program’s success came in 2016 when the Durham Police Chief at the time created an executive order, taking discretion away from Durham Police officers and making referral of eligible individuals to the program mandatory for the Department.

The need for a program like the MDP in Durham County was well articulated by county stakeholders and participants who participated in the process evaluation. All stakeholders feel that people—youth in particular—do not need to be arrested and deserve “a second chance,” as some put it, if they do not pose a threat to public safety. Members of local law enforcement also believe the program has been useful and impactful. However, many local stakeholders believe that the community still needs more prearrest diversion opportunities whenever possible.

The program is cost effective and began with a grant, but it is now part of the county’s regular budget, demonstrating that it is replicable in other jurisdictions, with the right support and buy-in from local authorities.

Racial equity was also discussed during the conception of the program—given the disproportionate numbers of Black people in the county’s jail. Around three quarters of participants in the diversion program have been people of color.

Through interviews, we found that community stakeholders and program participants believe the MDP is impactful, particularly in that it diverts people from being charged with a crime and entering the justice system. Interviewees also generally believe the program was deeply needed in Durham County because too many people were being unnecessarily arrested and incarcerated.

Our process evaluation yielded four key takeaways for jurisdictions interested in replicating the MDP. First, buy-in from law enforcement is critical because it is needed to start the diversion process. Second, support from local leaders, such as elected officials, will help develop local law enforcement buy-in and support. Third, qualified program staff with deep community connections are essential. And fourth, a philosophy of keeping people out of the justice system altogether will lead to increased participant satisfaction and reduce collateral consequences associated with any justice involvement.

None of the interviewed stakeholders expressed resistance to the program, but several noted that when it was being developed, there was notable resistance from law enforcement agencies and law enforcement associations. Most of that resistance involved concern among local law enforcement officers that the program could take away their ability to determine whether an arrest could be made in certain situations, an ongoing concern during the early years of program implementation. In addition, numerous officers believed this type of program would infringe on their ability to perform their duty and would override their power to use discretion. Over time—through trainings, interactions with the program staff and participants, and changes in law enforcement leadership—law enforcement agencies generally became more supportive of the program.

Several stakeholders strongly support the program but believe it does not “do enough” (in the words of one interviewee) to reduce countywide arrests and incarceration. They want it to expand eligibility requirements to include more offenses, including additional misdemeanor charges and some felony charges. Simply put, many stakeholders feel the program has positively impacted participants but that too few people have been able to participate, leaving more people involved in the local justice system than necessary.

Some stakeholders criticized the program for making eligibility requirements too restrictive and not allowing enough access the program, which they consider essential to diverting people from the criminal justice system pre-charge. Many interviewees believe other communities would benefit from implementing similar programs to divert people from the justice system.

We encourage people to read the full process evaluation and to develop their own diversion programs based on what has been learned in North Carolina.

Jurisdictions must take an intersectional approach to legal system transformation if they are to end the misuse and overuse of jails. This means understanding the drivers of overincarceration for any and all populations that have been overrepresented and disproportionately harmed by the criminal legal system—and developing culturally responsive strategies to address them.

The LGBTQ+ population has received strikingly little attention in the criminal justice reform movement, including the Safety and Justice Challenge. In order to address the overrepresentation of queer people in the criminal system, jurisdictions must challenge discrimination against LGBTQ+ people before, during, and after their system involvement, and they must question the impact of their own policies on this community. This is especially urgent as LGBTQ+ people continue to be increasingly targeted for discrimination by other powerful state forces.

Most recently, the current legislative assault on transgender youth shocks the conscience and makes our skin crawl. It targets an already vulnerable group of kids—with a disturbingly high rate of suicidal ideation—for political gain, threatening their physical and mental health and general wellbeing. But while this latest display of cruelty and bigotry is particularly staggering, it is not terribly surprising. The wellspring of transphobia and homophobia in the United States runs deep, far, and wide. And it is rarely disguised.

It took the Supreme Court of the United States until 2020 to hold that it violates the Civil Rights Act of 1964 to fire a person simply for being gay or transgender. In addition to failing to protect, laws targeting the LGBTQ+ community, whether directly or through discriminatory enforcement, have run the gamut. Some laws have been plainly aimed at punishing gay sex, such as the paradigmatic anti-sodomy laws, which existed in many states until the 1970’s and remained in force in others until ruled unconstitutional in Lawrence v. Texas in 1993.

Other laws appear facially neutral but are discriminatory in their enforcement. New York State recently repealed its “walking while trans” law that police used to detain and arrest individuals on suspicion of “loitering for the purposes of prostitution”—a practice so disproportionally used on trans women of color that it is sometimes referred to as “stop-and-frisk for trans women.” Elsewhere, however, the law remains on the books.

Adding insult to injury, there is an emerging trend of attorneys nefariously misgendering trans people in legal proceedings. And if they end up incarcerated, LGBTQ+ people frequently face abuse and ill-treatment in jails and prisons, with one study finding that 40% of transgender people were sexually assaulted while incarcerated in a given calendar year (for a good resource on policies to address this, look here).

In case there was any doubt, this bias and harm transcends the realm of laws and legal systems. Consider the ostensibly non-adversarial space of mental health care. It took the American Psychiatric Association until 1973 to remove the diagnosis of “homosexuality” from its Diagnostic and Statistical Manual (DSM)—and only after an extensive campaign. It then took until June 2019 (the 50th anniversary of the Stonewall riots in New York City) for the American Psychoanalytic Association to issue a formal, “overdue” apology for “past views that pathologized homosexuality and transgender identities.” The association’s press release acknowledged the role played by “the American psychoanalytic establishment” in perpetuating “discrimination and trauma.” Strikingly, one of the earliest examples we can find of court-ordered outpatient mental health treatment as an alternative to incarceration involved conversion therapy for men charged with violating Maryland’s anti-sodomy laws in 1938.1

All told, it is hardly coincidental that—even in 2021—LGBTQ+ people are disproportionately represented at every stage of the criminal legal system. Lesbian and bisexual women are four times more likely to be arrested than straight women. And as Black people have borne the brunt of mass incarceration, so too have Black members of the LGBTQ+ community. Nearly half of Black transgender people have experienced incarceration and 38% have reported being harassed by the police. Made worse by the discrimination that many face in their own homes and communities, LGBTQ+ people are more likely to experience unemployment, poverty, difficulty accessing healthcare, and homelessness, all destabilizing factors that can lead to and prolong their criminal (and civil) legal system involvement.

Despite their overrepresentation in the criminal legal system, LGBTQ+ people have been largely ignored by the justice reform movement. This must change—both at the federal and local level. In addition to legislative changes that can directly or indirectly effect criminal justice and those that can harm or support the dignity and well-being of the LGBTQ+ community, there are many improvements that can be made at the local level as well.

Jurisdictions must take a hard look at—and attempt to correct for—the drivers of LGBTQ+ overrepresentation in their criminal legal systems, creating accountability measures for system actors. It starts with reviewing existing policies, practices, and training protocols to ensure that they are inclusive, respectful, and responsive to the needs of LGBTQ+ people, especially those that are Black, Indigenous, and people of color. System actors must also authentically engage LGBTQ+ people and community organizations in collaborative policymaking and be sure that this representation includes transgender, genderqueer, and gender nonconforming people of color. Jurisdictions should also review their data collection practices and should work with LGBTQ+ organizations to consider more inclusive and representative data policies.

The overrepresentation of LGBTQ+ people in the criminal legal system is a manifestation of the discrimination they face in state legislatures, schools, housing, employment, health care, and sometimes their own families. Discrimination is cumulative and compounding, and LGBTQ+ people are especially vulnerable to harm. It is incumbent upon the criminal legal system to be aware of the points of disparity for people who are LGBTQ+ and to make the changes necessary to do better.