By Justice Policy Institute

Virginia is at a crossroads entering the 2022 legislative session. Progressive reforms, including abolishing the death penalty and broadening appeal rights, were a focal point of the last several years, but were primarily partisan with the support of only three Republicans. In 2022, control of Virginia will split, with the House of Delegates and Executive Branch controlled by Republicans, and the Senate of Virginia slightly leaning Democrat. While this poses a challenge for legislative activity, it provides an opportunity to step back and explore the critical issues faced by Virginia’s adult criminal justice system. The number of people in Virginia’s prison system, which declined for the first time in 2009 after four decades of growth, has plateaued in recent years. Virginia’s system remains plagued with dysfunction that disproportionately impacts communities of color and keeps people locked up for extremely long sentences. These practices have resulted in a costly system. In 2014, the Justice Policy Institute reported that Virginia spent $1.064 billion to run itsprison system, and even with a population decrease, the 2020 budget increased 25 percent to $1.34 billion. However, this is only part of the story. The toll of mass incarceration in Virginia has fallen disproportionately on the shoulders of its Black and Brown citizens, with devastating consequences. This is particularly pronounced among those persons serving extreme prison sentences.

Washington, DC: Justice Policy Institute, 2022. 16p.

By Jacqueline Beard

Sentences of Imprisonment for Public Protection (IPP sentences) were available for courts to impose from 2005 to 2012. They were designed to detain offenders who posed a significant risk of causing serious harm to the public through further serious offences in prison until they no longer posed such a risk. IPP sentences are indeterminate as opposed to fixed-term sentences. They have a minimum term that must be served in custody, sometimes called a ‘tariff’ that must be served before a prisoner can be considered for release by the Parole Board. The prisoner can then only be released once the Parole Board is satisfied the prisoner no longer needs to be confined for the safety of the public. Release is never automatic, and prisoners can be detained indefinitely if the Parole Board decides it is not safe to release them. When released, a person serving an IPP sentence will be on licence, subject to conditions. Breaching the conditions of the licence may result in the person being recalled to prison. If recalled, a person must remain in prison until the Parole Board is satisfied that custody is no longer necessary for public protection. The licence will be in force indefinitely until its termination. People serving an IPP sentence are eligible to have termination of their licence considered by the Parole Board ten years after their first release.

London: House of Commons Library, 2023. 22p.

By Jennifer Peirce, Madeline Bailey, and Shahd Elbushra

These two research briefs summarize analysis of county jail bookings in seven rural Georgia counties (2019–2020) and five rural Washington counties (2015–2021). In both Georgia and Washington, jail incarceration rates are higher in rural counties than in urban and suburban counties. The briefs, created in partnership with the University of Georgia and Washington State University, demonstrate that jails in these rural counties are primarily holding people for minor charges. Vera calls on local actors to use citation in lieu of arrest and automatic pretrial release policies, as well as to strengthen pretrial services and avoid using jail as a penalty for failing to appear in court or for technical probation violations. The majority of jail admissions in rural counties in both Georgia and Washington were for nonviolent charges, including driving with a suspended license, penalties related to navigating criminal legal system rules (like failure to appear in court), and probation violations.

DOWNLOAD: Punitive policies are driving jail incarceration in rural Georgia

Punitive policies are driving jail incarceration in rural Georgia

DOWNLOAD: Rural Washington State Needs Criminal Legal System Reform

By Melvin Washington II

For decades, the United States has responded to social issues like mental health and substance use crises, chronic homelessness, and ongoing cycles of interpersonal violence with jail. This has disrupted the lives of millions of people—disproportionately harming Black and Indigenous people—without improving public safety. There’s a better way. Communities can instead invest in agencies and organizations that address these issues outside the criminal legal system. The proven solutions highlighted in this multimedia report look beyond jails to promote safe and thriving communities.

More than 3,000 jail facilities operate in the United States. Before the COVID-19 pandemic, those jails processed about 10 million bookings annually. Some people stayed for hours and others for months. Overall, the number of people in jail has grown exponentially over the past 40 years—from about 220,000 in 1983 to more than 750,000 in 2019. In response to the COVID-19 pandemic, some jurisdictions took emergency actions to prevent the virus’s spread among incarcerated people and jail staff, which cut jail populations by an estimated 24 percent during the first half of 2020. However, these changes proved temporary; by June 2020, national jail populations were already rising. By the end of 2020, the population had rebounded by more than 50,000 people.

New York Vera Institute of Justice, 2021. 28p.

By Marta Nelson, Samuel Feineh and Maris Mapolski

One hundred years from now, we may look back at the United States’s overreliance on punishment and its progeny—mass incarceration—with the kind of abhorrence that we now hold for internment camps for Japanese Americans and Jim Crow laws. Or, if we never curb our reliance on jails and prisons for public safety, we may be in the same place then as we are today….This report posits that maintaining our system of mass incarceration will not bring people in the United States the safety and justice they deserve, while dismantling it in favor of a narrowly tailored sentencing response to unlawful behavior can produce more safety, repair harm, and reduce incarceration by close to 80 percent, according to modeling on the federal system. In this report, the Vera Institute of Justice (Vera) addresses a main driver of mass incarceration: our sentencing system, or what happens to people after they have gone through the criminal legal system and are convicted of a crime

New York: Vera Institute of Justice, 2023. 81p.

The The U.S. Department of Justice, Office of the Inspector General

  The U.S. Department of Justice (DOJ) Office of the Inspector General (OIG) initiated this limited-scope review after certain operational issues became so serious at U.S. Penitentiary (USP) Atlanta and Metropolitan Correctional Center (MCC) New York that, in 2021, the Federal Bureau of Prisons (BOP) significantly limited operations at the former and closed the latter. The DOJ OIG sought to assess how critical issues at BOP institutions are identified, communicated to BOP Executive Staff, and remediated. At the outset of our limited-scope review, then BOP Executive Staff told us they had been largely aware of the long-standing operational issues at USP Atlanta and MCC New York and expressed confidence in the BOP’s existing mechanisms to communicate information about operational issues. However, they also described four foundational, enterprise-wide challenges that they said limited their ability to remedy institution operational issues, specifically: • weaknesses in the BOP’s internal audit function, • delays in the BOP’s employee discipline process, • inadequacy of BOP assessments of institution staffing level needs, and • the BOP’s inability to address its aging infrastructure. In light of then BOP Executive Staff’s prior awareness of the USP Atlanta and MCC New York operational issues, we modified the scope of this review following these initial meetings to focus on these four causes and the scope of the challenges, their effects on institutional operations, and the Executive Staff’s efforts to remedy them.  

Washington, DC: U.S. Department of Justice, Office of the Inspector General, 2023. 42p.

By The Washington Lawyers’ Committee for Civil Rights & Urban Affairs 

Hundreds of people held in the Federal Bureau of Prisons’ (BOP) Special Management Unit (SMU) endured years of unconstitutional and abusive conditions. Those abuses were particularly extreme during the more than three years the program was located in the United States Penitentiary in Thomson, Illinois (Thomson). Over the past 18 months, more than 40 lawyers and legal staff members from the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, Latham & Watkins LLP, Uptown People’s Law Center, and Levy Firestone Muse LLP, investigated the conditions in the SMU at Thomson. During that investigation we collected accounts of extreme physical and psychological abuse from more than 120 people. We also witnessed firsthand abusive and obstructive staff behavior, and saw with our own eyes injuries inflicted by Thomson employees. Guards regularly placed individuals in dangerous four-point restraints for hours, sometimes days, and often without food, water, or access to a toilet. Many individuals reported being beaten and sexually assaulted while in restraints. Guards fastened the restraints so tightly that they caused scars on individuals’ wrists, ankles, and stomachs. This happened so frequently that the resulting scars became known as a “Thomson Tattoo.” In addition to physical abuse, guards subjected people in the SMU to psychological trauma through the use of extended solitary confinement, referred to by the BOP euphemistically as “restrictive housing.”1 In the SMU, solitary confinement involved locking two people in a cell for up to 23 hours a day, a practice known as double-cell solitary confinement…

Washington, DC: Author, 2023. 29p.

By Lucy Wainwright,  Sarah Senker, Krysia Canvin & Laura Sheard

The impact of COVID-19 has been exceptional, particularly on the National Health Service which has juggled COVID affected patients alongside related staff shortages and the existing (and growing) health needs of the population. In prisons too, healthcare teams have been balancing patient needs against staffing shortfalls, but with additional strains unique to the prison population. Such strains include drastic lockdown regimes and prolonged isolation, the need to consider health alongside security, known health inequalities within prisoner groups, and an ageing and ethnically diverse population (both groups disproportionately affected by COVID). The aim of this paper is to contribute to emerging research on the impact of COVID-19 on prison healthcare.

Health & Justice volume 11, Article number: 6 (2023)

By Lois M. Davis, Susan Turner, Michelle C. Tolbert, Allison Kirkegaard, Beverly A. Weidmer

In this report, the authors examine trends in the overall coronavirus disease 2019 (COVID-19) infection rate for the U.S. state prison population and summarize the findings from the most recent and most comprehensive study undertaken to date of correctional systems' responses to COVID-19 published by the Bureau of Justice Statistics. The authors also present the results of their 2022 survey of state correctional education directors to understand what modifications were made to educational programs for incarcerated individuals, including leveraging of technology in response to COVID-19 and impacts on instructional delivery and quality, student access to programs, enrollment and certifications earned, and on budgets.

Santa Monica, CA: RAND, 2023. 20p.

By  Elise Ferguson,  Helen De La Cerda,  Alise O’Connell,  and Paul Guerin, 

  The 2003 Prison Rape Elimination Act (PREA) requires that federal, state, and local correctional facilities maintain and enforce a zero-tolerance policy toward sexual abuse and sexual harassment for both inmate-on-inmate and staff-on-inmate misconduct. On October 1, 2020 the Metropolitan Detention Center (MDC) was through a competitive process awarded funds by the Bureau of Justice Assistance to address, enforce, and monitor PREA and its standards. The Bureau of Justice Assistance grant was awarded in an effort to assist counties and/or cities that are seeking to review and improve upon their implementation of PREA standards. For the MDC, this included establishing new PREA investigator positions as permanent staff, supporting facility upgrades and increasing surveillance, facility supplies such as shower curtains, and print materials for inmate education. These items support maintaining full compliance with PREA standards, improving PREA education for inmates that emphasizes reporting methods, streamlining contractor and volunteer training, improving data collection and management, and identifying specific populations especially vulnerable to sexual abuse. Our study and this report review PREA standards and procedures in practice at the MDC. This included a review of the PREA screening tool used at the MDC, both for structure of the tool and the effectiveness of the tool in identifying potential victims or perpetrators of sexual violence. We also analyzed disciplinary incidents that relate to PREA and reviewed the process of classification as it relates to PREA, and PREA incidents. In addition, we separately surveyed MDC staff and inmates and held a focus group with MDC classification staff. This report contains a set of recommendations that includes changes to the PREA screening tool and to PREA policies and procedures.   

Albuquerque: University of New Mexico, Center for Applied Research Analysis, 2022. 50p.

By Brady P. Horn,  Aakrit Joshi and Paul Guerin

  Substance use disorders (SUD) are very prevalent and costly in the United States and New Mexico. Over 20 million individuals in the US meet diagnostic criteria for SUD and over 65 thousand US residents died from drug opioid overdose in 2020. It is well known that there is a strong correlation between SUD and incarceration. National studies have found that on average two thirds of prisoners have SUD and approximately 30% of inmates report having an opioid use disorder (OUD). There is growing momentum nationally to incorporate SUD, particularly OUD treatment, into incarceration systems and numerous studies have found that providing medication for opioids use disorder (MOUD) in incarceration systems is clinically effective. Since 2005, there has been a Methadone Maintenance Treatment (MMT) continuation program within the Metropolitan Detention Center (MDC) where individuals who were already receiving community-based treatment could continue their treatment within the jail. Prior work has found that this program was associated with reduced crime. In 2017 this program was expanded and started providing treatment to individuals who had not been receiving methadone in the community prior to incarceration. In this study we evaluate the impact of this treatment program. Data was collected from numerous different sources, linked, thoroughly cleaned, and a difference-in-difference empirical strategy is used. Robust evidence is found that MMT initiation reduced reincarceration. Our main results find that MMT initiation is associated with a perperson reduction in 19 incarceration days in the one-year period after jail-based MMT was received. We also find evidence confirming prior studies that found MMT continuation reduces recidivism. We find that jail-based MMT continuation is associated with a per-person reduction in 31 incarceration days in the one-year period post release. Also, a heterogenous Surve treatment effect is found where individuals that received jail-based MMT for longer periods of time had larger reductions in reincarceration. Individuals who received MMT initiation for 70 days or more were associated with 22 fewer reincarceration days and individuals that received MMT continuation were associated with 60 fewer reincarceration days.   

Albuquerque, NM: University of New Mexico, Center for Applied Research Analysis, 2022. 43p.

By Tony Kirk, The HM Inspectorate of Probation (UK)

  The vision of HM Prison and Probation Service (HMPPS)’s Offender Management in Custody model is that ‘everyone in prison should have the opportunity to transform their lives by using their time in custody constructively to reduce their risk of harm and reoffending; to plan their resettlement; and to improve their prospects of becoming a safe, law-abiding and valuable member of society’. Our joint thematic inspection of OMiC pre-release found that OMiC was not working as intended. Part two of this thematic inspection focused on outcomes for prisoners after they are released. Inspectors considered how practitioners assessed, planned and reviewed the work required to support successful resettlement. We also considered the extent to which key outcomes were achieved when an individual was released from prison, including whether they secured settled accommodation and education, training and employment.  

Manchester, HM Inspectorate of Probation2023. 39p.

By Jazmin E. Palacios

For this thesis paper, the author analyzed cases from the U.S. Circuit Courts of Appeals and the U.S. District Courts in which inmates challenged the constitutionality of their conditions of confinement in extremely hot facilities. The author applies inductive methods and analytic procedures of grounded theory to identify legal doctrines, concepts, representations, and themes of court litigation and case law about excessive heat in correctional facilities. Through a review of constitutional law history and the analysis of federal court decisions, the author examines the constitutionality of incarcerating inmates in extremely hot facilities and offers policy guidance to prison officials on mitigation efforts in heat-related conditions of confinement. The author discusses legal precedents for questions addressing the conditions of confinement, and suggests some policy implications that consider the many prisoners who are on medications that risk severe illness and death when exposed to excessive heat, including that prison medical personnel should keep real-time records of inmates taking their medications, what their work assignments are, where they are housed, and what remedial efforts are being taken to ameliorate heat exposure. The author also suggests that inmates not taking high-risk medications but with a history of heat-related illnesses should be carefully monitored by officials to lessen sickness and reduce deaths, and notes that while things like air conditioning were previously considered a luxury, as global warming intensifies, it has increasingly become a medical necessity to avoid adverse outcomes of heat exposure.

Huntsville, TX: Sam Houston State University, 2021. 135p.

By U.K. Parliament. House of Commons. Justice Committee

• The House of Commons Justice Committee surveyed 6,582 prison workforce staff in the UK between 10 February and 6 March 2023 • The survey was advertised internally by the Ministry of Justice and by the Prison Officer Association • Respondents included 1,298 working at Band 2 and 5,113 working at Bands 3-5 • As at December 2022 there were 5,159 FTE Band 2 and 21,632 FTE Band 3-5 staff in post (public sector prisons), indicating a response rate respectively of 25% and 24%.    

London: The Committee, 2023. 45p.

By Penal Reform International and The Thailand Institute of Justice

  This 2023 edition of Global Prison Trends by Penal Reform International (PRI) and the Thailand Institute of Justice (TIJ) is published at a time where a string of financial crises and ongoing impacts of the COVID-19 pandemic are greatly affecting vulnerable people around the world. People in conflict with the law – and their families – are being hit by rising costs of living and austerity measures, as are prison systems. Our report assesses the impact of economic crisis on prisons and people detained or working in them, including in terms of food security. We also highlight the impacts of imprisonment on families who are often relied on to meet even the basic needs of their loved ones in prison. Long-standing under-resourcing of prison administrations and inadequate support for families in need are compounding this situation. Adequate resourcing and capacity of prison systems are prerequisites to protecting the human rights and basic needs of every person affected by imprisonment. The impact of prison overcrowding is central to our analysis in this year’s edition of Global Prison Trends. From healthcare and nutrition to rehabilitation and countering violence and criminal subcultures in prison, all initiatives would be more viable and effective, and human rights of all better protected, with fewer people in prison.   

London: Penal Reform International, 2023. 56p.

By  Mitali Nagrecha

  Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses— often in addition to other punishment such as probation or jail—and they charge fees (also referred to as costs or surcharges) to fund the court and other government services. The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments. Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions.3 When people are  unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.4 In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform. The most direct efforts seek to repeal revenue-raising fines and fees. More common, however, is the adoption of requirements that courts assess people’s ability to pay at the  sentencing hearing, and/or before punishing people for nonpayment.5 Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because  there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.6 It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States. Day fines are used in over 30 countries in Europe and Latin America to  calculate fine amounts that are tailored to people’s ability to pay.7 Day fines are set using a two-part inquiry. Courts first consider the nature and seriousness of the offense, measured in units or days. For example, a common low-level    misdemeanor may receive 20 units. Courts then calculate how much the person can pay per day/unit  based on their individual financial circumstances. The amount a person must pay per day is called the daily rate. Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may  be required to pay $20 per unit for a total fine of $400. Day fines provide a framework for setting a fine based not just on  the nature of the offense, but also on how much a fine will impact the person given their financial circumstances. The  resulting fines are theoretically more fair because people of different means experience the fines similarly. A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United  States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral  of negative consequences that people face upon nonpayment. Despite the theoretical resonance of day fines as a  potential solution, there has been very limited information available about how this model works in practice. This project  fills this knowledge gap.  

Cambridge, MA: Criminal Justice Policy Program at Harvard Law School. 2020. 156p.

By Jay Gormley

• Criminal fines are the most common criminal sanction and account for about 75% of principal sanctions issued by courts. As a principal sanction, fines are most commonly used for relatively less serious offences where an out of court disposal (OOCD) or discharge is not appropriate or possible. However, fines can also be used as a complementary sanction to another disposal - such as a community order for more serious offences.

• There is a need for the law to provide better clarity concerning the most appropriate role for criminalisation. Most notably, there could be better clarity about the relationship between criminal fines issued by courts and non-criminal fines issued by criminal justice personnel (e.g. police officers and prosecutors) by way of an OOCD.

• In the past, defaulting on a fine frequently resulted in the next step being a custodial sentence. Today, other sentencing disposals have to be considered first, ameliorating this issue. However, currently, there is no available data on how many people default on a fine, are given another order (e.g. a community order) which they also fail to comply with, and are ultimately given a custodial sentence for what was initially a finable offence. This matter requires urgent clarification and it should also be investigated whether it contributes to the high number of short custodial sentences.

• Fines, more than any other disposal, raise questions of fairness given the socio-economic inequality in society. Without care, fines risk disproportionately punishing the poor who may suffer more from a fine of a given amount. The Sentencing Council provides crucial guidance in this respect, but it could be taken further.
London: Sentencing Academy, 2022. 20p.

By  Lauren Knoth-Peterson, Katelyn Kelley 

In Washington State, some individuals convicted of a criminal offense may be eligible to receive a Drug Offender Sentencing Alternative (DOSA) in lieu of the standard incarceration sentence. Using administrative data from the Department of Corrections and WSIPP’s Criminal History Database, this study examined whether individuals participating in prison or residential DOSA were less likely to recidivate compared to similar individuals who received a non-DOSA sentence. Our findings indicate the prison DOSA reduces the likelihood of recidivism by 6.9 percentage points. These reductions in recidivism were consistent across subgroups by sex, race, and ethnicity. Our findings for residential DOSA were less conclusive. In general, residential DOSA had no effect on the likelihood of recidivism compared to a standard sentence. While we provide several potential explanations for the differences in the effectiveness of prison and residential DOSA, future research is needed to fully understand the mechanisms by which the two DOSA programs impact individuals’ outcomes, including recidivism.

Olympia: Washington State Institute for Public Policy 2022. 32p.

By Todd D. Minton

This report provides statistics on the demographic characteristics, most serious offense, and conviction status of persons held in Indian country jails. It also describes facility characteristics, including capacity and staffing. The report supports the mandate established by the Tribal Law and Order Act of 2010 that requires BJS to establish and implement a tribal data collection system, to support tribal participation in national records and information systems, and to annually report to Congress the data collected and analyzed in accordance with the act.

Highlights

• After peaking in 2019 (at 2,890 persons) and declining sharply in 2020 (to 2,020 persons) due to the COVID-19 pandemic, the midyear jail population increased for the second consecutive year by midyear 2022 (2,250).

• Indian country jails admitted 5,570 persons during June 2022, a 4% decline from the 5,780 admissions during June 2021.

• The ratio of jail admissions to average daily population (ADP) was about 2.6 to 1 in June 2022 (5,570 admissions to 2,170 inmates), down from 5.5 to 1 in June 2012 (12,500 admissions to 2,253 inmates).

• Four in 10 inmates were held for violent offenses at midyear 2022, up from about 3 in 10 in 2012.

  Washington DC:U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 2023. 16p.  

By Sharon Dolovich

In the prison law context, even when civil rights claims are strong on the merits, incarcerated litigants will lose most of the time. And even when lawyers win on behalf of their incarcerated clients, conditions don’t tend to change on the ground as much as they should. Regardless, prisoners’ rights lawyers do an enormous amount of good. In this essay, I argue for the indispensability of legal advocacy on behalf of people in custody despite how unfriendly courts are to claims brought from prison. Indeed, I suggest that, at this moment in the development of the carceral state, lawyering for the incarcerated is among the most impactful means we have to move our carceral system closer to consistency with the basic normative commitments of a constitutional democracy. In making this case, this essay describes (1) how lawyers help to lift the veil of secrecy that otherwise shrouds much of what happens in prison; (2) the work lawyers do as watchdogs, calling out and challenging the abuse and exploitation of the incarcerated; and (3) the way that, through their work, lawyers validate the humanity—and thus the dignity and self-respect—of their clients, who more typically exist in a systematically dehumanizing institutional environment

UCLA School of Law, Public Law Research Paper No. 23-07m 2023.