Topic: Jail Populations

Earlier this month, the Vera Institute of Justice published a special report on the massive jail in Scranton, Penn. The Lackawanna County jail, in Scranton, is 15 times larger than it was in 1970 and the incarceration rate is now twice as high as nearby New York City.

This is not an anomaly: the rise of jail incarceration has been most acute in the smallest U.S. counties like Lackawanna County, which has only 213,000 residents. What’s more, jails in small counties continue to grow, as they shrink in the largest cities across the country.

According to data released by the Department of Justice earlier this year, since 2005 jail incarceration rates increased 6 percent in small counties, or those with fewer than 250,000 residents. Across the country, when towns and small cities are confronted with overcrowded jails, they often look to expand capacity, rather than take steps to reduce the jail populations (see, for example, Douglas County, Kansas; Rush County, Indiana and Portage County, Wisconsin).

In contrast, jail incarceration rates declined 10 percent in mid-sized and large counties over the last decade. And in many cities, the decline from their peak jail population has been stunning: 42 percent in San Francisco, 28 percent in Milwaukee, 65 percent in New Orleans, 36 percent in Miami, and 44 percent in New York City. In 2013, 44 percent of the U.S jail population was in small counties where just 36 percent of Americans reside. If this trend holds, then by 2021 half of the U.S. jail population will be in small counties.

What’s behind these different reactions to growing jail populations? One possibility is that policymakers and the public in small counties have been “driving without a speedometer,” so to speak. The jail population today is often the only metric that exists in the public dialogue and no one even knows how much the jail has grown or whether it is an outlier.

Big cities know who their peers are and where to find comparable data. Too often, smaller counties do not study their trends and the trajectories that other counties have taken, which makes it seem like expanding their jail capacity is the only choice.

The first step towards reform is recognizing there is a problem. But before considering jail expansion, policymakers and the public need to first take stock of how fast they have been “driving.”

The Incarceration Trends data tool that my colleagues and I created—with support from the Safety and Justice Challenge—is designed to fill this knowledge gap, so that policymakers and the public in every county can examine their jail trends. In fact, it’s through this data that Vera decided to investigate the jail in Scranton, which the tool revealed to be representative of the outsized growth and racial disparities that are commonplace in small counties.

For too long, journalists, researchers, and advocates have been ignoring these places. It’s hard for a jail with only a couple hundred beds look like a “problem” when compared to the thousands of jail beds in places like New York, Chicago, and Los Angeles.

But although jail populations in each small county don’t come close to matching their mid-sized and large county counterparts, it is the small counties which hold a disproportionate share of the jail population. There are more than 2,500 such counties — so the numbers add up quickly.

As a result, ending mass incarceration means that reform is necessary in all counties.

This post originally appeared in The Hill.

Across the country, communities are recognizing that people with mental illness are overrepresented in their local justice systems. Too often, police are called to intervene with individuals experiencing mental health crises, which leads to arrest and time in jail—an environment in which they tend to fare poorly. Fortunately, local justice systems are increasingly implementing new policies and practices to help connect these people to treatment outside of the justice system. But there are underutilized opportunities for localities to reduce incarceration rates by using legal protections found in the Americans with Disabilities Act and the Olmstead Supreme Court decision.

The Americans with Disabilities Act (ADA)—which has far-reaching requirements for public services provided by state, county, and local entities—can serve as a significant tool to achieve reductions in jail populations. The ADA is a landmark civil rights bill enacted in 1990, based on a recognition that historically, society has tended to isolate, segregate, and discriminate against individuals with disabilities. The law mandates an end to this discrimination, for the purpose of assuring people with disabilities equality of opportunity, full participation, independent living, and economic self-sufficiency.

Of the ADA’s several parts, one—Title II of the ADA— imposes legal obligations on the activities of states, counties, cities, and similar public entities. This includes the administration of law enforcement and corrections, as well as the provision of services to people with mental illness. In service of the national movement to deinstitutionalize people with disabilities, Title II prohibits unnecessary institutionalization, and includes the so-called “Integration Mandate,” which requires public entities to “administer services, programs, and activities” in non-institutional settings that “enable individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Jails and prisons can be, without question, a form of unnecessary institutionalization that affects many thousands of individuals with mental illness.

Among people with disabilities and their allies, the ADA was heralded as a game-changer. However, the requirements of the ADA have not been universally accepted by state and local governments, and the law has been repeatedly challenged in court. One such lawsuit, Olmstead v. LC, resulted in a landmark Supreme Court case that has become the platform for dramatic ADA reforms nationwide for people with mental illness. The plaintiffs were similar to many people served through public mental health systems and those who come to be incarcerated in jails. They had longstanding mental disabilities and, for many years, cycled in and out of psychiatric institutions operated by the state. The core of their complaint was that they were not being afforded appropriate public services within the community and, as a result, they were being subjected to unnecessary institutionalization in violation of the ADA.

In 1999, the Supreme Court handed down its decision in Olmstead, finding that as long as the services do not represent a fundamental alteration of public systems, people have a right to receive the community services they need to live outside of an institution. The Supreme Court was addressing unnecessary institutionalization in a hospital, but the Court’s analysis applies to unnecessarily institutionalization in jail as well.

Both the Bazelon Center and the U.S. Department of Justice have used the Olmstead decision to bring ground-breaking lawsuits that challenge the unwarranted institutionalization of people with mental illness. This has resulted in public systems being spurred to develop an array of new service alternatives within the community. For example, two important statewide lawsuits, U.S. v. Georgia and U.S. v. Delaware, stemmed from DOJ investigations that found the states were unnecessarily segregating people with mental illnesses in institutions. Both cases resulted in settlement agreements which lay out a set of community services that must be developed statewide. This included Assertive Community Treatment, supported employment,  supported housing (individuals living in their own apartment with the help of rental subsidies and supportive services), and crisis services consisting of a crisis hotline, mobile crisis services, crisis walk-in centers, crisis apartments, and crisis stabilization services providing intensive, short-term crisis interventions. This array of services is proven to be effective in keeping people out of institutions and allowing them to remain in their communities. Since the needs of people with mental illness who are served by public mental health systems and those who enter local criminal justice systems are more alike than different, providing individuals in jails or at risk of institutionalization in jail with these “Olmstead services” can produce similar success in reducing jail populations.

The ADA and the reforms it has spurred hold great promise for people with mental illness within criminal justice settings. People with serious mental illness who are justice-involved qualify for the protections of the ADA, just like the beneficiaries of the Olmstead settlements discussed above. And the systems that are responsible for their needless arrest and incarceration—the mental health system and the criminal justice system—are public systems covered by the ADA. It’s time for states to use the legal rights in the ADA and Olmstead as leverage to develop the public mental health services needed to reduce contact with the criminal justice system and the incarceration of people with mental illness in jail.

When it comes to predictions—for example, the weather or national elections—experts are not always right. One safe bet, however, is when we try and predict who will continue to be arrested and booked into jail for minor criminal matters. In those cases, past behavior, uninterrupted by interventions, may well be the best predictor of future arrests.

In King County, Washington (Seattle), we have begun to predict who will be coming to our county jails based on the frequency of their past bookings. What we have learned has inspired us to consider a new approach. The King County Department of Community and Human Services (DCHS) took a look at individuals who have been booked four or more times in any 12-month period over the past three years and found that at any given time, there are about 2,000 people in our jail system who meet this criteria.

County taxpayers spent about $35 million a year on this group—an average of about $28,000 for each of the frequent visitors to our jail. Of this money, 87% was spent on due processes—criminal justice or crisis response programs—which primarily deal with the negative results of behavioral health disorders. Only 13% was devoted to programs like housing, treatment, or health care that can prevent frequent utilization of jails and other emergency services.

The Familiar Faces Initiative was created collaboratively within King County agencies with the goal to proactively assist people with the highest risk of arrest and incarceration for minor crimes. “When you look at this challenge through a behavioral health lens there is a real opportunity to help people find stability in their lives to avoid the patterns of conduct that lead so regularly to jail,”  said Adrienne Quinn, Director of DCHS. “We know that there is a better use of County resources than repeatedly processing the same people through the court system for minor matters,” she said.

The first step has been to identify a small cohort of 60 people meeting the definition of a “Familiar Face.” Care managers are reaching out to these individuals before they come back to jail with an offer of services and support. The program is in its inception, so there is little data yet, but we are encouraged by individual stories of success—like the man who was homeless for 17 years and is now in supportive housing through the efforts of the Familiar Faces team.

There is even a role for a deputy prosecuting attorney in Familiar Faces, which is modeled after the prosecutor’s role in Seattle’s Law Enforcement Assisted Diversion (LEAD) program, an arrest diversion model that has been replicated nationally. The prosecutor monitors all Familiar Faces participants for any new criminal activity as well as any pre-existing legal entanglements, and provides information to the care team regarding outstanding warrants and pending cases. The deputy prosecuting attorney utilizes prosecutorial discretion to divert cases, or works closely with law enforcement, the intensive care management team, defense attorneys, and community members collaboratively to resolve participants’ criminal entanglements so that they can access treatment and other services.

This preventative approach depends on new partnerships between social service providers and the criminal justice system. We all share the same goals of increased public safety and improved health for those stuck in the downward spiral of the criminal justice system. Familiar Faces is one example of what I call “Community Justice”: doing justice together with the community, and defining accountability through an outcome that is focused on reducing the harm that people do to themselves and their neighborhood.

For more information about Familiar Faces, please contact Jesse Benet, King County Behavioral Health and Recovery Division, Diversion and Reentry Services, at jesse.benet@kingcounty.gov.