Topic: Pretrial

On any given night in the United States, more than 550,000 people are experiencing homelessness. Among these, 96,000 are chronically homeless, meaning they are facing long and repeated episodes of homelessness that make it increasingly difficult to return to housing. This crisis is perpetuated by a legal system that criminalizes survival behaviors associated with homelessness, fails to account for the ways in which people who are homeless face impossible odds within the legal process, and then releases them back into the community with even more obstacles than they faced before.

The time has come for local justice systems to take immediate action to halt the cycle of homelessness and jail incarceration.

This must begin with acknowledging the harms perpetuated by the current system, addressing deepening racial disparities, and enacting urgently needed changes to policies and practices.

That’s the crux of a new evidence brief issued this week by the Vera Institute of Justice—strategic allies to the Safety and Justice Challenge.

In the brief, we examine how the overenforcement and criminalization of homelessness exposes unhoused people to frequent police contact and citations for unavoidable aspects of homelessness, such as camping outside or soliciting help. For people lacking a stable income, housing, or a reliable mailing address, unpaid fines and missed court dates can quickly trigger warrants and arrests. Once caught in the system, people without housing face a higher likelihood of pretrial incarceration and increased vulnerability to conviction, leading to longer periods in jail.

After release from jail, increased obstacles and restrictions make it even harder to find safe housing, employment, and overall stability—leaving many recently released people with no realistic option for avoiding homelessness.

Confirming the cycle, researchers have found that homelessness is between 7.5 and 11.3 times more prevalent among the jail population. Because of punitive laws and enforcement practices, people who are homeless are 11 times more likely to be arrested, nationwide, than those who are housed.

Without legal and policy changes, the cycle of homelessness and jail will persist, and will deepen already existing racial disparities within the criminal legal system. Research has shown that Black people make up more than 40 percent of America’s unhoused population, despite constituting only 13 percent of the general population.

The evidence establishing the link between homelessness and jail incarceration demands further research and highlights the urgent need for alternative approaches.

The most humane way to stop the cycle of homelessness and jail is to provide safe and stable housing for all. But, as some jurisdictions are starting to recognize the urgency of stopping this cycle, local justice system stakeholders have begun implementing smaller solutions that offer people experiencing homelessness a way to avoid the devastating consequences of the criminal legal system, while also allowing communities to free up system resources for other purposes.

Our brief offers several strategies for breaking the cycle of homelessness including:

• Eliminating harmful city ordinances that target elements of homelessness
• Halting the issuance of warrants for quality of life offenses
• Forgiving legal fines and fees for people experiencing homelessness
• Reforming probation and parole procedures to support people without stable housing
• Addressing housing and employment restrictions for justice-involved people

Especially in a year when the United States is weathering an unprecedented public health crisis, it is more important than ever to examine the systems that make communities most vulnerable and to implement alternatives that prioritize safety, health, and justice for all.

—Madeline Bailey is a Program Associate with the Vera Institute of Justice

The mass uprisings spurred by the killing of George Floyd, Breonna Taylor, and other Black Americans, have led many people to ask what role police should play in keeping communities safe. Despite this focus on policing, an observer of the criminal legal system might tell you that how police enforce laws is often influenced by how prosecutors handle criminal cases. We, as former prosecutors working to assist jurisdictions across the country with justice reform, believe the strategies outlined below are starting points for prosecutors to help promote a new vision of justice.

As cities explore ways to safely reduce the footprint of law enforcement, is there a reckoning that needs to happen for prosecutors? How might prosecutors better reflect communities’ values for public safety and provide community-driven solutions to crime? Given that prosecutors wield substantial influence over how laws may be enforced, we will benefit from prosecutorial approaches that improve people’s ability to sustain their own safety and the wellness of their communities.

As our colleagues at the Center for Court Innovation have set forth in Shrinking the Footprint of Police: Six Ideas for Enhancing Safety, there are proven ways for localities to invest in solutions that increase safety, limit the use of police, and remain rooted in anti-racist, community centered practices.

Prosecutors, too, have the ability—and indeed, an opportunity—to take these efforts even further.

This moment can inspire prosecutors, who see their role as representing the interests of the “the People” (their constituents), to forge new practices, partnerships, and programs that complement community-led safety efforts.

New Practices

First, prosecutors can develop practices that prioritize the well-being of survivors and accused people. Enter, again, the outside observer of the criminal legal system. This person sees prosecutors mostly urging swift legal action against people arrested for crimes. And the consequences are primarily retributive in nature: file charges, seek a conviction, and pursue an accompanying sentence. Prosecutors are trained to review an accused person’s criminal history and the alleged offense to recommend how the justice system should respond to the accused. These factors are indeed relevant to how cases might best be resolved, but how might early decision-making improve with more information? Perhaps the accused has a long trauma history, has unmet mental health needs, or is battling a substance use disorder without resources to address it. What if one or many of these factors contributed to the alleged offense? Prosecutors would do well to embrace a more holistic view of who accused people are early and often.

Prosecutors, who often advocate for sentencing outcomes, can also push for options other than jail to promote a person’s healing and community restoration. This concept is not new to prosecutors. They often obtain similar information, about how harm has affected someone, to better understand survivors and witnesses on their cases. Given that accused people are also part of communities that we want to keep safe, it is important to extend this practice to them.

New Partnerships

Along with developing the internal practices needed to ensure consistency between the office’s mission and its culture, prosecutor’s offices must embrace existing community solutions early and often. Community-based organizations (CBOs) provide tailored and targeted services that are needed in community as supplements to the social services provided by city and state government. Prosecutors can use these services as early on in cases as possible. In certain instances, they can also hold off on prosecuting people while they participate in these programs, to reduce further exposure to the court system. As an office beholden to its constituents and charged with protecting community safety, prosecutors must be familiar with and use community-based organizations and the services they provide as a bridge between the criminal justice system and communities affected by crime. Research supports this approach.

New & Expanded Programs

Once formal pathways to community-based services are in place, prosecutors may begin to identify gaps in the landscape to safely meet people’s needs outside of the court system. Maybe there’s a need for more programs that can reflect the cultural and ethnic needs of constituents. Perhaps services need to be available beyond business hours to serve people at the most critical times. There may also be a demand for more holistic programming that can offer housing and employment support—for accused people and their families—to help address the root causes of contact with the court system.

Whatever the needs may be, localities must be in a position to meet them if they intend to provide the supports that can preemptively address community needs. This kind of response takes investment, and prosecutors are in a unique position to offer a much-needed assist. Prosecutor’s offices often have access to civil asset forfeiture funds, which allow police and prosecutors to seize property with a suspected connection to criminal activity. These resources are often funneled back into the budgets of these same entities to spend in ways that promote public safety. To this end, prosecutors could invest asset forfeiture funds in local organizations that provide services to court-involved people.

Safe communities require investment—in networks and resources that can respond more nimbly, and often more affordably, than government might sometimes be able to do. At this moment of reckoning, prosecutors, too, can examine ways to heed communities’ renewed concerns about the criminal legal system.

Prosecutors can harness their power as representing “the People” to heed their call to broaden our view of how to keep them safe. This cannot happen unless we promote a culture that prioritizes healing and well-being over convictions. Indeed, prosecutors, who see their role as seeking justice can lead the charge to promote more human-centered approaches, for people accused of crime and survivors.

Given the serious mental health and substance use issues among justice-involved individuals, you might think that the criminal justice system would rely heavily on peer support groups to help address their needs. Unfortunately, this is not the case.

Peer support is an effective and helpful approach that can divert people with mental illness and substance use issues from the criminal justice system. When implemented correctly, it can be a formidable force.

It also has the potential to vastly reduce jail populations, in line with the goals of the Safety and Justice Challenge.

“Peer support providers are people with a personal experience of recovery from mental health, substance use, or trauma conditions who receive specialized training and supervision to guide and support others who are experiencing similar mental health, substance use or trauma issues toward increased wellness,” says the definition developed by the International Association of Peer Supporters (INAPS).

“The term peer supporter is an umbrella for many different peer support titles and roles,” the INAPS definition says. “Such as peer advocate, peer counselor, peer coach, peer mentor, peer educator, peer support group leader, peer wellness coach, recovery coach, recovery support specialist, and many more.”

The INAPS has also developed “National Practice Guidelines for Peer Supporters” which outlines 12 core ethical values for the practice of peer support: Peer support is voluntary; Peer supporters are hopeful; Peer supports are open minded; Peer supporters are empathetic; Peer supports are respectful; Peer supporters facilitate change; Peer supporters are honest and direct; Peer support is mutual and reciprocal; Peer support is equally shared power; Peer support is strengths-focused; Peer support is transparent; Peer support is person-driven.

Peer supporters provide services in both one-on-one and small group formats. They can assist individuals with an array of recovery-based topics, such as coping skills, developing personal recovery plans, crisis and relapse prevention, illness management and healthy lifestyle behaviors.

As many criminal justice offenders also have a long history of psychosocial problems that have contributed to their substance abuse, interpersonal difficulties with family members, difficulties in sustaining long-term relationships, emotional and psychological problems and disorders, difficulty managing anger and stress, lack of education and vocational skills, and problems finding and maintaining gainful employment, the utilization of peers for diversionary purposes to reduce the number of people booked into jail can prove to be a highly effective strategy.

While not getting too far into showing how many similarities exist between substance abuse treatment for those in the criminal justice system and for those in the general population, people in the criminal justice system have added stressors, including but not limited to their precarious legal situation. Criminal justice clients also tend to have criminal thinking and criminal values characteristics that affect treatment.

Peers can have more of an opportunity than treatment staff to observe each other’s behavior. Peers using a group treatment modality have the capacity to give more immediate feedback for positive steps to change and for negative thinking and behavior while in the community. Peers can often give feedback in ways that the client can more readily assimilate, enabling criminal justice clients to often quickly and accurately see the relapse signs in themselves. Using peer support and feedback also serves to prepare incarcerated criminal justice clients for using peer support organizations in the community.

One of the very tangible benefits that peer supporters bring is their first-hand, lived experience with mental health issues. Because of this, they can easily relate to individuals who are still struggling with their own personal challenges. They can also share the tips, tools, and strategies which have been useful for them, which may also be worthwhile for the person they are helping.

Perhaps one of the greatest gifts peer supporters bring to others is hope and inspiration, for they are a living role model of how it’s possible to grow, learn and have a fulfilling life while still coping with a significant and sometimes lifelong health challenge.

Broader understanding of peer support and its potential to reduce jail populations can only be a good thing for the criminal legal system. For those curious to learn more, I’d recommend a documentary which aired in April on KPBS in Florida, entitled The Definition of Insanity. It explores a peer support model in Dade County, Miami, through the eyes of people involved.

­–Lisa Maye, MSW is a Senior Project Associate at Policy Research, Inc.