Topic: Interagency Collaboration

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.

New research by Justice System Partners supported by the MacArthur Foundation’s Safety and Justice Challenge (SJC) shows the positive impacts of police-led deflection strategies on jail reduction efforts. Overall, “deflection first, arrest rare” as a primary policy for eligible offenses helps reduce criminal legal system involvement and improve equity by connecting individuals to the services they need. It no longer makes access to treatment conditional or contingent on arrest.

Download the report here. 

Deflection is different from diversion. Diversion programs make use of pending criminal charges as the mechanism to elicit treatment initiation and compliance from people living with severe mental health disorders and substance use disorders. Although diversion programs do not always include a formal booking to jail, the person does technically enter the legal system’s front door. In contrast, deflection programs entail no criminal legal system involvement beyond the interaction with the police officer in the field. There is no mechanism to coerce treatment initiation or compliance beyond an individual’s own wishes to enter a program. If an individual ultimately decides not to participate in the program they are referred to, there are no legal consequences. Police-led deflection programs also provide police agencies an opportunity to return to the streets and answer calls from 911 more quickly because transporting individuals to community services can take substantially less time than booking an individual in jail. Combined, police-led deflection can make police agencies more efficient while eliminating the collateral consequences of the legal system on individuals.

Police-led deflection allows officers to use discretion to replace arrest with outreach to community-based service providers for select offenses. It transforms police contact into opportunities to broker community resources, especially for individuals with severe mental health disorders and substance use disorders. It is key that we understand how deflection programs work in practice if we are going to improve and expand these programs, reduce jail populations, and improve equity and access to care by connecting people to the help they need.

The goal of the research was to understand how deflection works in Pima County, AZ, and in Charleston County, SC—two SJC sites. We sought to understand how police make decisions about who to deflect and how deflection to a local crisis center impacts people’s subsequent experience. In 2011, Pima County built the Crisis Response Center (CRC) with county bond funds. It is part of the Banner-University of Arizona Medical Center South Campus. The CRC is a short-term inpatient unit with a maximum length of stay of five days and has a “no wrong door” policy – which means they accept nearly everyone, except individuals who require hospitalization, from any law enforcement agency in the county. Similarly, Charleston County runs the Tri-County Crisis Stabilization Center (TCSC) which is a ten-bed voluntary adult crisis center embedded within the Charleston Drug and Alcohol Center where individuals can stay up to 14 days. Both counties’ crisis centers provide immediate treatment options and psychiatric care for individuals.

In Pima County, when people receive at least two voluntary deflections to the local crisis center, they are more likely to continue agreeing to subsequent deflections and, each time they return to the crisis center, they stay longer. In Charleston County, two-thirds of individuals deflected to the local crisis center had a previous case with the county’s mental health department, showing that both police and service providers are often interacting with the same people. These findings suggest that police-led deflection can help connect or re-connect individuals with treatment while reducing the number of individuals who are brought to jail—effectively creating a parallel treatment open door. Importantly, these repeat access points to treatment reflect research that suggests people need multiple opportunities to access treatment services before agreeing and engaging with the program. In this way, police-led deflection, particularly for individuals who have disproportionate police contact, can transform pathways to jail into pathways to the help they need for individuals historically excluded from access.

A parallel treatment open door does not mean failure to initiate or complete treatment. The treatment open door acknowledges the complexity and nuance of treatment and reflects the research about the need for multiple opportunities to remain engaged. When police policy allows multiple deflections of the same individuals, as in Pima and Charleston Counties, it means every interaction with individuals is another opportunity to engage them in treatment while eliminating the collateral consequences of the legal system and jail for these vulnerable populations.

In both counties, if the offense is eligible, the policy allows police to offer deflection to an individual regardless of how many times they offered deflection to the individual in the past. This means that while the policy itself reflects the research on multiple opportunities to engage in treatment, police in practice have the ultimate decision-making authority to deflect or arrest. As a result, police hold a lot of decision-making power for triaging people out of the legal system revolving door, and into a treatment system revolving door. As we continue to unpack how officers make decisions about who to deflect and under what conditions, it is important to consider the intersection of race, gender, and disability and how that impacts officer decision-making about who is “worthy” of deflection.

Officers in Pima County reported people’s willingness to start treatment as the most critical factor when deciding to deflect to a community-based resource. When people did not want to initiate treatment, officers tended to rely on arrest, even when they knew that jail would not help the individual. But the ability to deflect for certain eligible offenses means that the police have determined that no arrest is an acceptable response. This tension demands a critical examination: If people do not wish to go into treatment, are there other ways officers can diffuse and handle the situation without relying on arrest?

Officers in Charleston County cited victims’ wishes—including those of business owners—as the most critical factor when deciding whether or not to begin the process of deflection. For example, when victims remain at the scene and want police to arrest the individual, even when the offense is deflection-eligible and the officer recognizes jail is not helpful, police expressed feeling inclined to defer to the victim and make the arrest, anyway. This means victims are, in part, driving who is offered deflection and potentially contributing to disparate deflections. As such, we must critically examine the role of victims in the deflection initiation process and consider how victims’ own perceptions of justice and implicit bias can temper the positive impact of police-led deflection programs.

“Deflection first, arrest rare” as both policy and principle connects vulnerable individuals, who are historically excluded from the services they need, with easy access to treatment. It also lessens opportunities for implicit bias, determinations of “worthiness,” and non-clinical judgments about readiness for change to impact the decision to deflect. When agencies distance themselves from jail and deflect as the primary response, and do so for everyone, they no longer make access to treatment conditional or contingent.

A new R Street Institute report supported by the MacArthur Foundation’s Safety and Justice Challenge explores the successful implementation of pre-arrest diversion strategies in three conservative communities. Such strategies respond to challenges facing law enforcement agencies across the country including staffing shortages, negative public perception, overpopulation in jails, increases in violent crime, and court backlogs.

While criminal justice reform can be a politically charged term, we found that several conservative jurisdictions champion pre-arrest diversion as a way to support law enforcement and to remain fiscally disciplined. These jurisdictions have prioritized police time and resources, enabling law enforcement to deal with serious crimes while simultaneously rebuilding community relationships. They have also effectively diverted low-level offenders while balancing individual rights and public safety. The paper spotlights three jurisdictions that employ at least one diversion strategy, and in so doing, reveals how the traditionally conservative values of public safety, fiscal responsibility, and limited government interference are at the core of such programs. The paper also explores how to overcome challenges around starting diversion programs.

Law Enforcement Assisted Diversion (LEAD)— Cheyenne, Wyoming

Police-initiated diversion gives officers the opportunity to refer someone to intensive case management outside the criminal justice system rather than cite or arrest the individual for a crime.

Laramie County, Wyo., where Cheyenne is located, has been particularly successful in implementing Law Enforcement Assisted Diversion (LEAD). The community explored this option after finding that prosecuting and jailing individuals with behavioral health needs was ineffective in improving public safety. Officials and professionals merely saw a “revolving door” of the same individuals. Further, Cheyenne had seen a steady increase of mental health calls, violent crimes, and overdose related deaths; they needed to try something different.

When the program first began, some officers were hesitant to refer individuals to LEAD. In fact, one lieutenant at the Cheyenne Police Department feared LEAD, “wasn’t holding people accountable and just allow[ed] people to screw up with no consequence.” But many officers gradually saw the positive results. The lieutenant who initially was a skeptic eventually became “all in.” Officers realized that even if individuals were being arrested, they returned to the streets upon release with no support or services in place to help them change behaviors, with many returning to drug use or other destructive activities. LEAD has been a positive step for these individuals. In fact, officers tracked how many contacts they were having with people who were frequently arrested and found after a LEAD referral, officers had not talked to many of these individuals in months. One individual said the LEAD program saved his family member’s life.

Co-responder Model— El Paso County, Colorado

Though police officers generally do not have the training to handle mental health crises, many communities rely upon police to handle such issues. In an effort to support law enforcement in these situations, many communities have implemented co-responder programs. In a co-responder model, a behavioral health clinician (and in some models, emergency medical personnel) accompany law enforcement on patrol.

The sheriff’s office in El Paso County, Co. formed their own co-responder program, the Behavioral Health Connect Unit (BHCON), in 2017 after realizing they needed to reduce jail intake rates. When researching how to reduce the jail population, they realized that a high number of incarcerated individuals suffered from mental health issues. The BHCON team now responds to mental health crisis calls as well as low-level crimes in which it is clear that the individual’s mental health crisis—rather than criminal intent—is the cause for the criminal act.

This immediate response to someone in crisis has resulted in a reduction of expensive arrests and jail admissions as well as a reduction in mandatory psychiatric holds (often referred to as a “72-hour hold”) that are often done in hospitals. In 2021, BHCON responded to 1,154 calls for service. From those calls, BHCON diverted 99 percent from jail and 85 percent from the emergency department. At a time when hospitals are having to divert patients (due largely to COVID-19), saving hospital space is essential. BHCON has also relieved law enforcement of having to rely on the jail as a de facto mental health facility when an individual does not meet the threshold for a mandatory psychiatric hold.

Community Responders— St. Petersburg, Florida

Too often, law enforcement is responding to noncriminal calls where their presence is not necessary. Community Responders (or Civilian Response) takes the co-responder model and removes the police officer entirely. That is, community responders divert individuals from the criminal justice system by having trained, non-law enforcement professionals respond to certain calls for service that do not require a gun and a badge.

This model is the most effective at reserving police resources for the most dangerous crimes while also lowering the potential of escalating a situation by removing the presence of law enforcement. Instead, dispatch alerts community responders who have backgrounds and specific training to help in situations where behavioral health and/or social concerns are the prominent issue.

In 2019, St. Petersburg’s police department partnered with a local nonprofit to form Community Assistance and Life Liaison (CALL). Under the CALL model, clinical staff and community navigators respond to calls such as panhandling, truancy, welfare checks, mental health holds, and disputes between neighbors. When initiating the program, the St. Petersburg Police Department believed such a program could respond to approximately 12,700 calls, diverting individuals from the criminal justice system.

Overcoming Challenges to Diversion

While law enforcement agencies and local elected officials seem to be open to the idea of diversion, many jurisdictions face hurdles when it comes to implementation. Even with proven success, available funding, and law enforcement buy-in, concerns of logistics, safety, and cost can create hurdles. The report focuses on ways these communities have overcome such challenges and shows it is time for other communities, of any political leaning, to support law enforcement in shutting down the inefficient revolving door of the criminal justice system. Ultimately, these pre-arrest diversion programs can and should be implemented to increase public safety, protect personal rights, and save taxpayer dollars.

Too often across county government there are siloes between efforts to reduce jail incarceration and efforts to house people. But a recent report by the Urban Institute funded by the Safety and Justice Challenge shows how cross-governmental collaboration can break down these siloes and address historic injustice which has contributed to the jail-homelessness cycle.

The report is based on learnings from three private roundtables we held in 2020 with practitioners, people with lived experience of jail incarceration, and subject matter experts across housing, behavioral health, and criminal justice. The purpose of the roundtables was to understand how gaps and lack of coordination prevent large-scale systems change in these areas. Specifically, conversation focused on analyzing how existing funding streams limit housing options for people with criminal justice involvement.

It is important for counties to understand the background of structural and institutional racism that connects housing and criminal justice challenges. Decades of disinvestment and exclusionary zoning have created barriers for people of color to live in some upper and middle-class neighborhoods. Even when affordable housing is created it often ends up in distressed and under-resourced areas. Disparate racial outcomes in our housing and criminal justice systems persist in part because solutions to racist histories are often focused either on housing or the criminal justice system, not the relationship between the two.

Counties are in a position to help bridge the housing and justice fields. Housing instability can both be a result and a cause of interaction with the criminal justice system. People with serious mental illness and substance use disorders, people with previous incarceration, and people in moments of transition (such as aging out of foster care)are all more likely to experience housing instability. an This diversity of factors calls for program and policy solutions that can minimize the risk of experiencing the justice system–housing instability cycle. Any effort to improve housing stability and reduce jail use must intentionally align the specific needs of the people being served and the activities pursued.

The report settled on the following four constructive approaches to addressing the cycle:

1. Provide Housing Without (or with few) Conditions

The Housing First approach is an evidence-based concept grounded in the idea that people need housing before they can begin working on other challenges. Housing is a stabilizing platform that helps people overcome challenges in other aspects of their lives (e.g., substance use disorders, lack of employment). Housing First recognizes this and therefore does not condition housing on the achievement of sobriety, treatment, employment, or other milestones. Evidence shows this practice works.

2. Support the Whole Person to Achieve Housing Stability

Housing stability is not just about housing. Supportive services linked to housing can help improve outcomes for people with mental health and substance use disorders, both of which can contribute to and be exacerbated by jail stays. Each year 2 million people with mental illness are booked into jails. Of those 2 million, 75 percent have substance use disorders. In many cases, people receive their first mental illness diagnosis in a correctional facility. Jails should not be substitutes for robust community-based behavioral health services. Instead, counties can shift resources to create housing solutions that provide holistic approaches and services to address underlying challenges such as mental illness and homelessness.

3. Fund Multiple Pathways to Promote Housing Stability

Just as there is no single cause of housing instability, there is no single housing solution that can meet all residents’ needs. Counties should pair structured, clearly defined programs, such as permanent supportive housing, with flexible funds that can be used to solve a wider variety of underlying challenges for people who cycle in and out of jails and housing.

4. Plan for Release before Release

Deflection from the criminal justice system should be the guiding principle for local policymakers, however, no community has eliminated the use of jails. The millions of people released from jail every year, many more than once, face unique challenges and require supports that promote housing stability upon release. Landlords and property owners discriminate against applicants who have any degree of justice-involvement. Public housing authorities may temporarily or permanently exclude people with some types of criminal histories, using their broad discretion when crafting screening and eviction policies. Where deflection and diversion are not successful, counties and local criminal justice and housing actors can embed housing planning at intake or other points before release for those with the highest needs.

Bridging Funding Gaps

To date, housing as jail diversion has attracted limited attention and investment. This is caused partly by the siloed nature of existing traditional funding streams and the inherent risks of experimental and innovative solutions. Strained state and local budgets present another significant barrier to addressing housing as jail diversion entirely within the traditional funding paradigm. However, the pandemic-spurred urgency to reduce jail populations, new federal funding streams, and continued growth and maturity in the innovative funding marketplace have created an opportunity to invest in solutions. We encourage counties to explore opportunities for impact investment to bridge gaps by tapping new funding that is faster, more flexible, and potentially more conducive to testing and scaling innovative solutions like these.

Actionable strategies are needed to improve coordination across the sectors, increase housing options at the point of diversion and reentry, and leverage the investments to make this happen. Counties and cities can help the housing and justice sectors to help people avoid justice system involvement in the first place, support successful returns to their communities, and target resources toward housing stability.

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 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 (SJC), aids in responding to concerns raised by the Department of Justice (DOJ) 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.

The DOJ commissioned a report in the wake of the 2015 police killing of Michael Brown, which spawned a series of racial justice protests in Ferguson, attracting international attention. The report found that police practices were often unconstitutional and that municipal court practices imposed substantial barriers to the challenge or resolution of municipal code violations. The court also imposed “unduly harsh penalties for missed payments or appearances,” the report said. It also said the law enforcement practices in Ferguson were driven in part by racial bias and that they disproportionately harmed African American residents. So, it is evident that in St. Louis County any efforts to lower the jail population must go hand in hand with intentional efforts towards racial equity.

Minor legal issues are often part of the reason people “tap out” of trusting the criminal justice system. They stop people feeling proactively and collectively engaged with their community’s safety and security. But the new “Tap In Center” aims to rebuild trust between community members and the criminal justice system, with racial equity at its core. The goal is to help people to have a brief conversation and to help them re-engage with court cases and, more importantly, legal assistance.

Data helped with identifying the location for Tap In. It is taking place in the zip code where most African American people in the county’s jail system live. It is also located in a neighborhood that has historically been underserved in transit access, social services, and community supports. The center aims to take a humanitarian approach to the issues that people face when they must go to a court date every month, often for an extended period of time, until their case might be resolved.

The “Tap In Center” is more than just a place for people to resolve warrants. People can also meet with an attorney, learn their case status, apply for help from a public defender, or even access a cellphone. The center also connects people with other wrap-around services to help them with various challenges in their lives, from temporary housing to clothing to help with food.

Residents have spoken positively about their experience with the center, saying it allows them to continue their lives without fear of bench warrants or fear of arrest for this. Wakesha Cook told St. Louis Public Radio that after getting connected with a public defender and setting up a new court date, “I feel free.”

“When I first got to the center, I was a little nervous since I had this warrant on me, but when I started talking with the people, I was relieved,” said Earnest Holt, another person who visited the center, in an interview with the St. Louis American.

The Tap In Center is a community-based space in a public library. It’s located in a safe, neutral, calm, welcoming spot and is designed to remove barriers and worries that a person might have about going into a courthouse. It welcomes people who come in with warrant issues—people who have historically been wary about engaging with the justice system because they are afraid of, for example, serving jail time.

The center is the result of a partnership between the St. Louis County Library system, The Bail Project, the Missouri State Public Defender, and the St. Louis County Prosecutor, with support from the St. Louis County Courts 21^st Judicial Circuit.

Criminal Justice reform strategies in St. Louis County go beyond the Tap In Center. They have focused on systemic case processing, including a population review team, enhanced pretrial reform, pretrial assessment, legal representation, and expedited probation handling. Each of the county’s reform strategies is meant to decrease the disproportionate burden that people of color face in the criminal justice system. St. Louis County is also advised by its own Ethnic and Racial Disparities committee, made up of criminal justice stakeholders, representatives from community advocacy groups, and individuals with lived experiences.

At the time of writing, St. Louis County had reduced the average daily population of its jail by 24% since joining the Safety and Justice Challenge in 2016. Nevertheless, racial disparities do persist. The average daily population of Black people in the jail has reduced by 15% from 2016 to 2021, according to the numbers, and the average daily population of White people has reduced by 41%. Length of stay has reduced for Black individuals who are seeing a 44% decline in the length of stay compared with 41% for White individuals. COVID has slowed progress because of court closures and other related delays. Now that things are reopening, the county is ready to continue its work.

The Tap In Center represents progress and provides motivation for the continued work to be done to address long-standing issues. We hope that other communities across the country will learn from the Tap In Center as they attempt to address their own racial equity issues and more.