By Jeffrey Fagan, Garth Davies & Raymond Paternoster

Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman. Analyzing a dataset of 2,328 first degree murder convictions in Georgia from 1995–2004 that produced 1,317 death eligible cases, we show that two features of these cases combine to produce a small group of persons facing execution: victim race and gender, and a set of case-specific features that are often correlated with race. We also show that these features explain which cases progress from the initial stages of charging to a death sentence, and which are removed from death eligibility at each stage through plea negotiations. Consistent with decades of death penalty research, we also show the special focus of prosecution on cases where Black defendants murder white victims. The evidence in the Georgia records suggests a regime marred less by overbreadth in its statute than capriciousness and randomness in the decision to seek death and to seek it in a racially disparate manner. These two dimensions of capital case adjudication combine to sustain the twin failures that produce the fatal lottery that is the death penalty

Columbia Public Law Research Paper No. 4324073; Cornell Law Review, Vol. 107, No. 1565, 2022

By: Carrie Pettus, Beth M. Huebner, Faye S. Taxman, Teisha Sanders, Laura Lightfoot, Nancy McCarthy, and Rebeccah Bennett

Jails hold more individuals than any other correctional facility, with over 10 million people admitted annually (Zeng & Minton, 2021). The management of jails at the local government level is characterized by inconsistent leadership and offering few services or transitional programming (Copp & Bales, 2018; Henrichson et al., 2015). The misuse of local jails is often noted because they have become mental health facilities, warehouse unconvicted pretrial populations, often for minor offenses, spread diseases such as COVID-19, and other related health concerns of overcrowding (Nowotny et al., 2020). Jails play a central role in the criminal legal system, and yet they are understudied and overused.

There is evidence of substantial racial disparities and other inequities in jail incarceration. Black people are disproportionately held in jail and, in 2019, had incarceration rates over three times that of white persons (Zeng & Minton, 2021). People of color are also less likely to be given non-monetary bail options and are substantially less likely to be able to post financial bonds, further contributing to disproportionate minority confinement (Wooldredge, 2012).

Jails are also racialized institutions. Many jails have racialized subcultures, where residents of non-white racial backgrounds face increased segregation, tensions, or violence; limited employment opportunities; and social stigma (Walker, 2022; Pettit & Gutierrez, 2018). Racial disparities in incarceration exacerbate vulnerability to violence, sexual abuse, solitary confinement, and inadequate healthcare (Western et al., 2021; Wildeman & Wang, 2017). Carceral environments such as jail often manifest racial divisions, with staff frequently exhibiting racial antagonisms, either individually or collectively.

Racism can also manifest within the dynamics of a jail setting, with documented instances of racial bias and discrimination within correctional facilities including, the rate at which Black individuals are admitted to jails and the corresponding length stay. Racial disparities among the staff also result from disparate hiring practices, barriers to promotions, and negative workplace interactions (Wooldredge, 2020). Discrimination among fellow staff can lead to a hostile work environment, exacerbating tensions and negatively impacting job satisfaction and morale, and a humane jail environment. But studies of jail officers’ experiences of racism are still limited.

Understanding and addressing these systemic issues are crucial for fostering a more equitable and just correctional system. New approaches are needed to transform the culture that contributes to racial bias in correctional settings. Yet, despite decades of studies documenting racial disparities as drivers of incarceration, few models have been implemented effectively to reduce inequities and disparities in the system.

This report presents an approach to addressing racial equity within jail settings. Our innovative method integrates participatory methods and evidence-driven quality improvement processes to develop and refine recommendations of racial equity interventions in complex jail systems. Participatory methods engage diverse stakeholders to assess historical and contemporary drivers of racism and develop cohesive organizational goals to promote racial equity. The Plan-Do-Study-Act (PDSA) quality improvement process highlights the use of empirical information, allowing participants to address their perspectives and reconcile them with empirical data, resulting in the identification of new approaches that promote equity.

The premise of our work is that achieving racial equity in jails can profoundly impact the conditions of confinement for residents and working conditions for staff. For residents, outcomes include ensuring appropriate support, instilling a sense of fair treatment, improving the handling of individuals with health issues, and reducing the punitive nature of the jail climate. For staff, racially equitable policies and practices provide a better work environment, enhance well-being, aid recruitment and retention, support career advancements, and promote healthy exchanges with residents, as project outcomes.

In 2022, our collaborative initiative undertook a project to address racism and racial inequities within one County Jail.

KEY THEMES THAT EMERGED IN THE RESEARCH

• Resident workgroups described a lack of beneficial programs within the jail. Incarcerated women denoted that the programming was gendered, and that they did not have equal opportunity to participate in programming, like the education and training programs that had been recently launched for men.

• Healthcare, particularly mental health services, was a key stressor for all. Many residents indicated that their medical emergencies were not taken seriously or responded to in a timely manner. Female residents felt that the detox process was not well supported. Staff felt that they would like more mental health counseling made available, as well as more of an emphasis placed on improving the well-being of staff and incarcerated individuals, as a result of expressed powerlessness within their position as a staff member and status as an incarcerated resident.

• Inequities are also intersectional. For example, women felt that their hygiene needs were not addressed. Women lacked access to soap, menstrual supplies, and undergarments. Black women reported not having access to hair products that met their needs. Individuals who did not speak English as their primary language or had other physical or mental disabilities were perceived as not having their needs met or considered.

• Staff and incarcerated persons identified that they felt a pervasive sense of unfairness within the organization, and people in minority groups felt that there was little accountability for staff’s racist behavior or misconduct of any kind.

• Staff and incarcerated persons – the majority of whom are Black – felt that racism is implicitly endorsed and perpetuated. Conversely, some white staff and residents downplayed or overlooked the existence of racism, and attributed any hardships experienced in the jail environment to factors other than race.

• Staff-specific areas of concern included disparities in promotions and leadership opportunities. Black staff felt that they were often overlooked for promotions. Staff felt that there was a lack of transparency in the process, which led to perceptions of favoritism, particularly among the predominantly white male leaders.

• Through workgroups and surveys involving staff and residents, we identified and prioritized 30 intervention recommendations across three categories: Health and wellbeing, staff and resident interactions, and training and programs. These interventions, guided by an antiracism framework, aim to address power imbalances, disparities in perceptions of racism, and intersectional issues.

• Overall, it is essential to balance power distribution in racial equity work, particularly in the context of jails where conditions of confinement are intertwined with power dynamics. Participants recognized that jails are environments characterized by powerlessness, emphasizing the importance of addressing power imbalances as part of efforts to achieve racial equity.

• Increasing transparency and accountability emerged as a central theme for staff and residents. They felt there was a need to develop or appoint a neutral, external group to review the jail operations and manage staff complaints and internal affairs investigations. Residents also felt that developing an app that tracked the grievance process would be helpful.

• Staff requested a clear career pipeline from the jails’ frontline to leadership to allow for job expectations to be more transparent. They requested that all employees receive the support, training, and professional development opportunities needed to be promoted to higher jobs.

• Both staff and residents requested substantial reforms to their respective healthcare needs. Residents suggested implementing a protocol to respond to sick calls and medical emergencies. Residents also requested healthier food and access to more recreation time. Staff felt that there was a stigma against requesting assistance, particularly mental health care, and suggested more confidential programming and supports.

Moving forward, ongoing implementation, evaluation, and refinement of interventions remain crucial to validate this process and the issues that were exposed. Staff and residents raised concerns about the full adoption and sustainability of the effort and interventions. The issues raised require care and attention by jail leadership that are often not fully available to those who manage a chaotic environment. There is a need for continued support in the implementation of the recommendations from the PDSA process. This underscores the broader implications for the sustainability of this transformative work and its potential for lasting systemic change.

Fairfax County, VA: Safety & Justice Challenge, George Mason University, 42p.

by Anastasia Christman & Han Lu

In virtually all US states, official emergency response plans (EOPs) include roles for incarcerated workers as part of preparation, response, and recovery work. Many EOPs define roles for “inmates” or “prisoners” that place these workers in danger from environmental hazards or exposure to chemicals or biological dangers. Elected officials often admit that they could not afford to engage in disaster response without access to this coerced and typically unpaid work force. But in most cases, states also refuse to extend the typical health and safety protections of other workers as laid out in the Occupational Safety and Health Act (OSHA). These states alternately rely on longstanding and racist loopholes in Civil War-era amendments that extended coerced labor for those in the carceral system, assertions that incarcerated disaster workers are volunteers engaging in dangerous work as a form of redemption, and claims that exemptions in federal OSHA law for public sector employees shield departments of correction from having to abide by labor protections. We explore the language and structure of assignments in some of the 30 states that include incarcerated workers in their EOPs to identify how age-old notions of a racist carceral system and the necessity of punishment underlie dangerous assignments during disasters. We place this analysis next to legal arguments and conventions in health and safety laws that put these workers outside the jurisdiction of labor regulators. Together, these narratives work to put incarcerated people in peril during natural disasters without even basic workplace protections. We find that:  In many states incarcerated workers are labelled as “prisoners” or “offender labor” and are sent to clear roadways of debris, engage in wildfire suppression, assist in heat emergency response, and dispose of dead or diseased livestock.  While departments of correction often characterize this work as voluntary, systems of physical danger, privation, and excessive carceral costs and fees coupled with strong incentives for early release push incarcerated workers into accepting dangerous assignments.  Very few incarcerated workers have recourse to OSHA protections if they get hurt working on assignment by department of corrections officials, and nearly 90 percent fear retaliation if they lodge complaints about carceral operations.  Health and safety protections for incarcerated workers are minimal and inconsistent, with some states offering limited protections for workers having contact with private businesses, others denying all coverage entirely, and some deciding on a case-by-case basis if OSHA has jurisdiction. We conclude that:  The abolition of coerced labor entirely is a matter of basic human rights and dignity, and every state should amend its state constitution to prohibit all slavery and then immediately change all regulations, rules, and practices that exempt these workers from basic labor standards.  States with their own OSHA plans should explicitly extend health and safety protections to all incarcerated workers and work with community advocates and incarcerated workers to understand the health and safety needs of this group of workers.  Federal lawmakers should pass the Correctional Facilities Occupational Safety and Health Act immediately to amend the OSH Act to include state and local carceral facilities as employers and incarcerated workers as employees under the law.

New York: National Employment Law Project, 2024. 32p.

By Frederic G. Reamer

Probation practitioners sometimes face moral uncertainty in their work that requires skilled judgment. These decisions may entail vexing questions about the limits of probationers’ privacy, informed consent protocols, paternalism, compliance with allegedly draconian policies, allocation of limited resources, and whistle-blowing, among others. Especially since the early 1980s, practitioners have been introduced to a wide range of conceptually rich ethical decision-making protocols. Practitioners’ increasingly nuanced grasp of ethical issues reflects the broader expansion of ethics education in the professions generally, including medicine, nursing, psychology, mental health counseling, and marriage and family therapy, among others (Banks, 2012; Barsky, 2019; Council on Social Work Education, 2022; Martin, Vaught and Solomon, 2017; Reamer, 2018a). Core competences related to professional ethics typically address practitioners’ ability to:

• make ethical decisions by applying relevant standards, relevant laws and regulations, and models for ethical decision-making

• cope with moral ambiguity

• use reflection and self-regulation to manage personal values and maintain professionalism

• demonstrate professional demeanor in behaviour, appearance, and communication (oral, written, and electronic)

• use technology ethically and appropriately to facilitate practice outcomes

• use supervision and consultation to guide professional judgment and behaviour.

These core competencies, which are especially relevant to probation, focus primarily on practitioners’ grasp and application of key concepts and decision-making protocols. They also highlight the importance of practitioners’ humility and ‘reflective practice’ when managing ethical issues (Dewayne, 2006; Kaushik, 2017). This Academic Insights paper will explore these concepts further, highlighting the potential benefits for probation practice.

Academic Insights 2023/03; Manchester, UK: HM Inspectorate of Probation 2023. 15p.

By Matthew Cracknell

Introduced under the Transforming Rehabilitation reforms, the Offender Rehabilitation Act 2014 created a period of post-sentence supervision (PSS) after licence for individuals serving short custodial sentences. This empirical study features on the ground views and perspectives of practitioners and service users of PSS in one case-study area. Findings from this research suggest a number of issues and ambiguities with the enactment of the sentence. These include ambiguities regarding the correct use of enforcement procedures; the antagonistic relationship between third sector and Community Rehabilitation Company staff, primarily centred around transferring cases and concerns over the use of ‘light touch’ supervision and uncertainties over what the rehabilitative aims of this sentence mean in practice. These issues led to practitioners questioning the legitimacy of the third sector organisation involved in the management of PSS, while service users experienced PSS as a frustrating ‘pass-the-parcel’ experience, where resettlement support was constantly stalled and restarted at each juncture of the sentence. Before briefly discussing the potential future of PSS under the next iteration of probation policy, this article concludes by arguing that there is emerging evidence of a commonality of failures occurring at every juncture of the short sentence, undermining resettlement prospects for the long-neglected short sentence population.

Probation Journal Volume 67, Issue 4, December 2020, Pages 340-357

By Matt Cracknell

In 2021, 47,014 people were released from prison in England and Wales (Ministry of Justice, 2022), demonstrating the extent to which resettlement work is a core part of probation practice. However, the practitioners tasked to work with these individuals are often asked to fulfill a range of antagonistic and contradictory aims and approaches to resettlement (Canton, 2022) that can include:

• aftercare

• treatment

• the continuation of punishment

• risk management.

Indeed, there have been various policy and practice initiatives regarding how best to support people as they leave custody dating back to the birth of the modern prison in the early 19th century (Crow, 2006). These ambiguities reinforce concerns outlined by Maruna (2006) – that resettlement lacks an underlying theory or narrative for how it is supposed to work.

The uncertainty regarding how best to support people leaving custody is mirrored in ambiguities in the terminology used to describe this practice, with a set of interchangeable terms such as resettlement, re-entry, reintegration, and rehabilitation often used. However, there are a number of scholars who feel that the prefix ‘re’ for these terms is inappropriate and does not sufficiently capture the reality that many people leaving prison are perennially disadvantaged and had not previously been integrated or settled in society (Carlen and Tombs, 2006). In England and Wales, resettlement is the common terminology in official policy language, replacing the previous terms of ‘aftercare’ or ‘throughcare’, and is used to describe the process of leaving prison and returning to society. However, linked to its originations in official policy language, resettlement is also commonly used to refer to any prison and/or probation intervention used to address practical issues and criminogenic factors in order to reduce reoffending (Rubio Arnal, 2021).

Despite the longstanding ‘intractable problem’ (Crow, 2006: 3) in providing effective resettlement, there is a substantial evidence base that demonstrates how best to support people as they leave prison and transition back into the community. This Academic Insights paper will draw upon this literature in order to outline what best practice in this area might look like, outlining six key principles of effective resettlement support. The paper will then turn to outlining some potential barriers that need to be addressed in order to realise this approach, setting out the implications for resettlement policy.

Academic Insights 2023/01 ; Manchester, UK: HM Inspectorate of Probation, 2023. 13p.

By Matt Cracknell

Contemporary criminal justice policy in England and Wales has witnessed various resurgences of political interest in resettlement and the short sentence population. This intermittent attentiveness has been mirrored in the circular re-iterations of policy initiatives ostensibly designed to bring greater continuity to the services that administer ‘through the gate’ work. These efforts include the ‘seamless sentence’ of the 1991 Criminal Justice Act; ‘end-to-end offender management’, the creation of The National Offender Management Service (NOMS) and the introduction of custody plus under New Labour; and the current Transforming Rehabilitation (TR) ‘through the gate’ reforms. It is important to analyse these attempts in order to understand why resettlement policy consistently fails to deliver an improved continuity between prisons and probation. This paper argues that resettlement policy has a common thread of issues that inhibit effective resettlement practice. This article will firstly consider the ‘essence’ (Senior and Ward, 2016) of resettlement practice, outlining several key principles that should be central elements for resettlement policy and practice, before providing an overview of these various policy initiatives; examining a common thread of failures in their realisation. This article will then look ahead at the next possible iteration of resettlement policy, ‘offender management in custody’ (OMiC), concluding that despite key changes, this latest policy continues to repeat the errors of past resettlement policy failures.

British Journal of Community Justice ©2021 Vol. 17(2) 86–103 https://doi.org/10.48411/pfz6-ba61

By Prison Reform International and the Thailand Institute of Justice

The Global Prison Trends 2024 report is the 10th edition in this flagship series, offering a detailed overview of the major developments and challenges in prison systems around the world. Published in collaboration with the Thailand Institute of Justice, this edition sheds light on key issues such as prison overcrowding, the mental health crisis in prisons, corruption, and the growing use of digital technologies. It also highlights the significant disparities in prison labour, including variations in access, pay and working conditions.

In addition to identifying these challenges, the 2024 report showcases innovative solutions, including ‘green’ initiatives aimed at promoting rehabilitation and sustainability.

London: Penal Reform International , 52p 2024

By Penal Reform International (PRI) and the U4 Anti-Corruption Resource Centre (U4).

Corruption poses a significant challenge in criminal justice systems globally, impacting the human rights of prisoners and the effective administration of justice. Detention monitors, with their unique access to prisons, play a critical role in addressing corruption. They can document evidence of corruption, engage in advocacy, and support evidence-based policymaking at various levels.

London: U4 Anti-Corruption Resource Centre (U4)., 2024. 24p.

By Nixon Randy Sinaga

Indonesia maintains a punitive war on drugs policy model. Various campaigns are conducted to emphasise that drug offences are the most serious crimes. This construction is clearly contrary to international human rights standards. The Human Rights Committee defines the meaning of ‘most serious crime’ through General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life (GC/36). Paragraph 35 of GC/36 does not place drug offences as one of the most serious crimes. This further confirms that Indonesia’s war on drugs policy has been built upon an erroneous and unfounded paradigm. Law Number 35 of 2009 concerning Narcotics (Narcotics Law) which is in force until now contains offences that tend to open up extensive interpretations and overlap between one another. The implication of this overlapping offence in the Narcotics Law is the imprisonment of people who use drugs, people who have drug dependency, and people who abuse drugs. The paradigm of the most serious crime built by the government in narcotics cases actually brings problems to the conditions of correctional institutions in Indonesia. The problem is at least evident from the results of an assessment of the characteristics of people incarcerated for drug cases conducted by the Jakarta Regional Office of the Ministry of Law and Human Rights, stating that at the end of 2018, the number of people in prison for drug cases reached 115,289 people or 95% of the total number of people imprisoned for special criminal cases in Indonesia. This figure is much higher than the number of people detained in corruption cases (5,110), illegal logging (890), terrorism (441), and money laundering (165).

London: International Drug Policy Consortium, 2024. 8p.

By The U.S. National Institute of Justice 

Title I of the First Step Act of 2018 (FSA) required the Attorney General, in consultation with the Bureau of Prisons (FBOP) and the National Institute of Justice (NIJ), to develop and implement a risk and needs assessment system. In 2020, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN) was developed and implemented, with the intent of assessing recidivism risk and determining eligibility for early release time credits outlined by the FSA. Also mandated was the development of a dynamic needs assessment system. Utilizing existing and validated assessment items and scales, the FBOP created Standardized Prisoner Assessment for Reduction in Criminality (SPARC-13), which consists of 13 domains: Anger/Hostility, Antisocial Peers, Antisocial Cognition, Education, Family/Parenting, Finance/Poverty, Medical, Mental Health, Recreation/Leisure/Fitness, Substance Use, Trauma, Work, and Dyslexia (Federal Bureau of Prisons, 2022). Section 3631 of Title I of the FSA requires that both the PATTERN and SPARC-13 be reviewed and validated on an annual basis. To help fulfill these requirements of the FSA, NIJ announced a competitive Consultant Statement of Work (SOW) and selected three consultants to conduct the annual review and revalidation of the SPARC-13. NIJ contracted with Dr. Grant Duwe, Dr. Zachary Hamilton, and Dr. Alex Kigerl to review and revalidate the SPARC-13. This report reviews and validates the SPARC-13 by conducting analyses relating to internal content, convergent/divergent, latent structure, and concurrent validity. It also presents the results from a process evaluation of the FBOP’s development and implementation of the SPARC-13.

Washington, DC: U.S. National Institute of Justice, 2024. 69p.

By Margaret Love & David Schlussel

Background: This report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years, a period that typically (though by no means invariably) commences after completion of the court-imposed sentence. Also typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases.

Contents of the Report: Following this introduction, the report consists of two 50 state Tables, one showing the waiting periods applicable to clearing of misdemeanors, and the other showing the waiting periods applicable to clearing of felonies, with states that have no general record clearing listed at the bottom of each table. The Tables are followed by maps showing the geographical distribution of waiting periods for each type of conviction. The maps are followed by an appendix describing in greater detail the laws governing waiting periods in each of the jurisdictions studied.

Summary of 50-state research results:

• The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states).

• The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states).

Comment on methodology: This report deals only with waiting periods, and only with those applicable to general record clearing of felony and misdemeanor convictions. Different waiting periods may apply to specialized record-clearing programs such as those that apply to victims of human trafficking, decriminalized offenses (e.g., marijuana), and so-called youthful offender programs. It also does not take account of other eligibility requirements that typically apply that could extend the waiting period, including completion of supervision and/or payment of court debt, or potential extensions related to prior, subsequent, and pending criminal matters. It does not consider provisions allowing the DA to consent to shorten waiting periods.

The Tables are based only on the length of the waiting period specified in statute. Insofar as practicable, the charts account for differences in when the waiting period commences (e.g., upon conviction, upon release from incarceration, upon completion of supervision, upon completion of sentence including payment of court debt). Further information about states in the far righthand column of the Tables may be found in the state-specific write-ups in the Appendix or in the state-specific profiles from CCRC’s Restoration of Rights Project.

Considerations for assessing the efficacy of waiting periods: In assessing how waiting periods affect the efficacy of a particular state’s record clearing system, it is important to consider whether some states with shorter waiting periods authorize clearance of a narrower set of convictions, and, conversely, whether some states with longer periods may authorize clearing of a broader set of convictions. In many if not most cases, other variables (including but not limited to those mentioned in the foregoing paragraph) will have to be brought into play to provide a fair assessment.

The changing concept (and length) of waiting periods: Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.”1 In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.”

Since 2016, thirteen (13) states have reduced their waiting periods, four (4) states more than once. The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.3 States that have reduced their waiting periods in recent years, or enacted new record-clearing laws for the first time, tend to be geographically and politically diverse. The Tables show that the states with the longest waiting periods in the country are on the East Coast, with all but one in the Mid-Atlantic region.

Waiting periods and public safety: Data on recidivism dating from the 1990s reinforced policy arguments that waiting periods should be long enough to reduce the risk of reoffending after record clearance. But new research on recidivism suggests that shorter waiting periods need not raise public safety concerns. Researchers at the RAND Corporation have raised questions about decades of received truth about the prevalence of reoffending after people leave prison, proposing that the majority of individuals with a conviction do not have a subsequent conviction, and that a person’s likelihood of being convicted again declines rapidly as more time passes. This new research would seem to cast doubt on the legitimacy of concerns that shortening waiting periods necessarily raises public safety concerns. Indeed, to the contrary, it suggests that it may be possible to reconcile the seemingly inconsistent policy goals of facilitating and recognizing rehabilitation through shorter waiting periods.

Arnold, MO: Collateral Consequences Resource Center (CCRC) , 2022 23p.

By Caroline Cohn, Margaret Love, et al. - National Consumer Law Center, Inc. and Collateral Consequences Resource Center

For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life. Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of these individuals by providing a path to clear their record. But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also the requirement in many jurisdictions that applicants satisfy debt incurred as part of the underlying criminal case before they can have their record cleared. This can be a high bar: the total amount of fines and fees can run to thousands of dollars for even minor infractions and can be considerably higher for felonies.

People prevented from clearing their record because they cannot afford to pay are usually those most in need of relief. And, perversely, because a record significantly impairs economic opportunity, having an open record makes it harder to pay off fines and fees and therefore harder to qualify for record clearing. This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of structural racism in criminal law enforcement and in the economy. Ability-to pay tests and similar waiver approaches to reduce or eliminate monetary barriers to record clearing have been shown to be poor safeguards in many contexts.

FINDINGS: NATIONWIDE SURVEY OF COURT DEBT AS A BARRIER TO CLEARING A CONVICTION RECORD

This report explores the extent to which restricting access to record clearing based on outstanding criminal fines, fees, costs, and restitution—collectively known as “court debt”—may prevent poor and low-income people from getting a second chance. After surveying research on the importance of record clearing and the mushrooming financial burdens imposed on criminal defendants, it analyzes the extent to which outstanding court debt is a barrier to record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system. Our study focuses in particular on generally applicable statutory authorities for clearing adult criminal convictions; it excludes record-clearing authorities available for other categories of records (e.g., non-conviction records) or for specific categories of individuals (e.g., victims of human trafficking).

We found considerable variation and complexity in how jurisdictions treat outstanding court debt in the context of conviction record clearing. We identified six general categories into which jurisdictions fall, and we analyzed the specific details of each jurisdiction’s law.* The map below shows how we categorized each state, with a legend describing in general terms the criteria for inclusion in each category.

Our research revealed the following:

• In almost every jurisdiction, outstanding court debt is a barrier to record clearing in at least some cases, either rendering a person entirely ineligible for record relief or making it difficult for them to qualify for this relief.

• At the same time, however, only 6 of the 50 states require payment of all court debt in order to qualify for record clearing—evidence that most state policymakers do not think that all court debt should have to be paid off for an individual to benefit from record clearing.

• While some of the states that have enacted automatic record-clearing laws do not restrict eligibility based on outstanding court debt, others do, such that making record-clearing automatic does not necessarily obviate this monetary barrier.

• In many states it is difficult to determine the relevance of outstanding court debt in the record-clearing context, and even more difficult to predict whether a person with outstanding court debt will be successful in obtaining relief. This uncertainty makes it difficult both to understand eligibility for record clearing and to successfully navigate the application process, and it creates the potential for inconsistencies in how the law is applied and who obtains relief.

Although this report focuses on how court debt operates as a barrier to record clearing for those without the means to pay, it also describes the variety of filing and administrative fees that often must be paid to apply for record clearing. The high cost of application also creates a barrier to a fresh start

RECOMMENDATIONS

Based on our research, we offer the following recommendations:

1. Court debt should never be a barrier to record clearing: Qualification for record clearance should not be conditioned on payment of court debt, and outstanding court debt should not be a basis for denying relief, regardless of whether record clearing is petition-based or automatic.

2. Application-related costs, including filing fees, should never be a barrier to record clearing: States should adopt automatic record-clearing processes that do not require individuals to incur costs to have their records cleared. States with petition-based record clearing should not require people seeking relief to pay any filing fees or other costs to submit a petition or to obtain or effectuate relief.

3. Jurisdictions should collect and report data on monetary barriers to record clearing: Jurisdictions where record clearing may be denied on the basis of outstanding court debt should collect and report data reflecting the impact of these barriers on record clearing. Jurisdictions should also collect data reflecting the impact of filing fees and other application-related costs on obtaining relief

National Consumer Law Center, Inc. and Collateral Consequences Resource Center 2022. 62p.

By Margaret Love & Nick Sibilla

At the beginning of each year since 2017, CCRC has issued a report on legislative enactments in the year just ended, describing and evaluating new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. These annual reports have documented the steady progress of what our report three years ago characterized as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This modern law reform movement is grounded in and inspired by the circumstance that almost a third of adults in the United States now have a criminal record, which entangles them in a web of legal restrictions and discrimination that consigns them to a permanent second-class citizenship. It reflects a public recognition that the “internal exile” of such a significant portion of society is not only unsafe and unfair, but it is also profoundly inefficient. Last year we reported that the legislative momentum had slowed somewhat, and this year it has slowed still further. Only a handful of states enacted significant new laws in 2023, most in the form of new record-clearing schemes. We attribute this slowdown in part to how much has been accomplished in legislatures across the country in the past seven years in dealing with the basic rights of those who have successfully navigated the criminal law system. For example, more than half the states now allow people with a felony conviction to vote unless they are actually incarcerated. And, almost every state has taken some steps to ensure that employers and licensing agencies do not discriminate against people with a criminal history. Most states have also taken steps to limit public access to some criminal records. It is especially gratifying that just since we published our Model Law on Non-Conviction Records in 2019, a dozen states have adopted its recommendation that records of dismissed charges be automatically expunged. It remains to be seen whether the coming year will mark a return to the torrid pace set by legislatures across the country between 2018 and 2022, when more than 500 new record reforms were enacted by all but two states. Last year’s report borrowed its title (“The Frontiers of Dignity”) from the Basic Law adopted by the Federal Republic of Germany after World War II, which declared that “Human dignity shall be inviolable. To respect and protect it shall be the duty of state authority.” The report’s introduction noted that most European countries incorporate this foundational premise, as well as a concern for individual privacy, into their treatment of criminal records, by making them largely unavailable to the public and by limiting how they are used to deny rights and opportunities. In part because American legal systems are not similarly grounded in respect for dignity and privacy, our progress toward a fair and efficient criminal records policy has been slow and uneven. Yet it has been steady, animated in recent years both by a concern for racial justice and by economic self-interest. This report, like our past annual reports, attempts to capture this steady progress toward recognizing the worth and dignity of the millions of Americans whose past includes a record of arrest or conviction.

Arnold, MO: Collateral Consequences Resource Center 2024. 25p.

By JESSICA REICHERT, RYAN MARANVILLE, EVA OTT HILL

Persons reentering the community after prison face many obstacles that have been shown to reduce recidivism, such as securing employment. Like many states, Illinois operates work release centers allowing prisoners nearing the end of their sentence to work in the community and stay in the correctional facility when not working. Although the research is limited, these programs have been shown to be successful at increasing post-release employment, increasing hours worked, and reducing recidivism. We described characteristics of 1,580 participants in Illinois’ four Adult Transition Centers (ATCs) and examined differences in characteristics associated with rearrest and reincarceration. We found age, gender, and ATC facility were associated with rearrest and reincarceration. We found, as well, that recidivism risk, offense type, prior arrests, prior incarcerations, and length of stay were associated with rearrest. We recommend consistently measuring risk and tailoring services to the needs of the participant population.

Chicago: Illinois Criminal Justice Information Authorisy 2023. 17p.

By Jessica Reichert, Ryan Maranville, Eva Ott Hill

Introduction

In 2022, over 16,000 persons exited prison in Illinois (Illinois Department of Corrections, n.d. b). Employment is a major factor in successful community reintegration after prison release. Not only is it important to formerly incarcerated individuals, families, and their communities it is also associated with lower rates of recidivism (Berger-Gross, 2022; Flatt & Jacobs, 2018; Nally, et al., 2014; Yang, 2017). However, formerly incarcerated persons face many barriers to employment, such as stigma by employers; restrictions or prohibition to some jobs because of criminal records; lack of or gaps in work experience; and deficits in human capital, such as inadequate education, training, or vocational skills (Pogrebin et al., 2014). These barriers keep the formerly incarcerated from being competitive in the labor market. Even years after release, these individuals consistently have low rates of employment (Looney & Turner, 2018). The jobs that are available are often low-skill, seasonal, temporary, and part-time. They provide low wages and limited, or no, benefits. While most individuals struggle to obtain employment post-release, certain groups are at a greater disadvantage because of race and gender (Pew Charitable Trusts, 2010; Western and Sirois, 2019). Both race and gender affect earnings and employment (Carson, et al., 2021; Couloute & Kopf, 2018). Prison and community reentry programs can help increase individuals’ probability of post-release employment. However, such programs are not sufficiently available to serve all who need them.

In order to examine employment following release from Illinois prisons, ICJIA collaborated with the Illinois Department of Corrections (IDOC) and the Illinois Department of Employment Security (IDES). We sought to answer the following main research questions:

• What types of employment did formerly incarcerated individuals obtain after release?

• What were the employment and wage trends of individuals released from prison in recent years?

• What were the characteristics of those who obtained and did not obtain employment?

• What individual characteristics and employment sector impacted length of employment and earnings?

Methodology

We matched individual IDOC state prison data to IDES state employment data. This research was approved by the ICJIA Institutional Review Board. Our sample was made up of 4,430 persons who exited prison in 2018, and we tracked their employment through 2021. Most of the individuals in the sample were Black males with an average age of 37.

We ran descriptive statistics, t-tests, and linear regressions to examine employment patterns and outcomes. The data were analyzed using IBM SPSS Statistics, Version 23.0. We performed independent sample t-tests for those who were employed to examine differences in mean length of employment and mean wages based on industry. We performed linear regression to examine differences in sample characteristics and length of employment and wages following prison release.

Study limitations include the absence of some variables of interest, such as vocational program participation and education levels of releasees. We also were unable to know whether individuals had non-taxed or out-of-state employment or if they were unable to work due to jail stays, disability, or death. Finally, the COVID-19 pandemic had an impact on employment during two of the years that we examined (2020 and 2021). This impact means our trends will vary from previous or subsequent years of data.

Discussion of Key Findings

Formerly Incarcerated Had High Unemployment

Following release from prison people in the sample had a relatively high unemployment rate of 45.5%. This rate was higher than both the state rate and rates found in prior studies (Couloute & Kopf, 2018; U.S. Bureau of Labor Statistics, n.d.-a). A possible explanation is that COVID-19 affected rates of employment/unemployment in the United States beginning in early 2020 (U.S. Department of Labor Statistics, 2021). At present, however, the United States is experiencing a lower unemployment rate than when COVID-19 took hold in 2020 (U.S. Bureau of Labor Statistics, 2023). This increased demand for workers could potentially benefit the formerly incarcerated. As prior research has indicated, ex-prisoners and their employment have been sensitive to labor market conditions and job availability upon release (Schnepel, 2018; Yang, 2017).

Individuals Had Relatively Low Earnings Post-Release

The average income for those employed in our sample was $8,998 annually, which is lower than the 2021 individual federal poverty level (U.S. Department of Health and Human Services, n.d. b). Low earnings for formerly incarcerated persons have been found in prior studies (Looney & Turner, 2018; Western, 2018). In our sample, the hourly rate, as calculated by our team, was $10.42 per hour, which was lower than the state of Illinois rate of $11 (U.S. Department of Health and Human Services, n.d.-c). Other researchers have also found low hourly rates (Visher et al., 2008). In addition, findings from prior studies have led researchers to conclude that employment is vital to meet basic needs and to lower recidivism for the formerly incarcerated (Flatt & Jacobs, 2018; Nally, et al., 2014; Yang, 2017). Coupled with such findings our evidence indicates a need for increased in-prison educational and vocational programming along with a reduction in socially held stigma and unnecessary background checks (Finlay, 2009).

Persons who Were Black Experienced Lower Employment and Wages Than Those of Other Races

In our study a higher proportion of Black persons than persons of other races were unemployed. They also had lower wages after release. Such disparities have been found in prior literature (Pew Charitable Trusts, 2010; Western and Sirois, 2019). Prior literature also has indicated that challenges to employment following prison were greater for Black persons (Pager et al., 2009; Wheelock & Uggen, 2005; Western & Sirois, 2019) due in part to a lack of employment opportunities (Clear et al., 2003; Morenoff & Harding, 2014; Roberts, 2004; Sampson & Loeffler, 2010). Therefore, there is a need for investment in prisoner reentry and support services (Reichert, 2019; Travis et al., 2001; Visher & Farrell, 2005).

Women Worked More but Earned Lower Wages

Following prison, women in our sample were slightly more likely to be employed than men, but they earned less. This finding is consistent with prior research into women’s employment after incarceration (Carson, et al., 2021; Couloute & Kopf, 2018). Researchers have found, for example, that formerly incarcerated women and men encountered similar barriers to post-release employment, such as a lack of education and job skills and overall limited career opportunities. However, in this study, women had very different experiences and responsibilities both prior to incarceration and after release. Women had much higher rates of prior physical or emotional abuse, which can create obstacles to employment and contribute to their having to live in poverty. In addition, since formerly incarcerated women were more likely than men to be primary caretakers for minor children, they faced this additional obstacle to post-release employment (Seville, 2008). As one government report advised, women should be supported to find employment, learn skills, and gain other supports, such as childcare (Substance Abuse and Mental Health Services Administration, 2020). For women in the IDOC system only one work release center is available. This center has demonstrated success in improving employment outcomes for women post-release, thereby suggesting the need for and feasibility of its potential expansion (Jung & LaLonde, 2019).

More Employment and Higher Pay in Certain Sectors

The Bureau of Labor Statistics categorizes work into two supersectors: service providing and goods-producing. Of the people in our sample who were employed, over 91% were employed in the service providing supersector as opposed to 32% in the goods-producing supersector. (Some persons worked more than one job across supersectors during the time period studied.) Of those working in the service providing supersector, the largest proportion - over one-third - worked in the “administrative support and waste management and remediation services” sector. During the COVID-19 pandemic, however, this sector had a sharp decline, which may have affected, or continue to affect, formerly incarcerated workers (U.S. Department of Labor Statistics, 2021). Although typically offering low wages, jobs in this sector can be attained by those with limited skills; and employees in this sector are projected to remain in demand (Illinois Department of Employment Security, n.d.). Overall, the overarching service providing supersector employed a large majority of our sample but those who worked in the goods-producing supersector worked longer and had higher wages. Goods-producing industries include agriculture, forestry, fishing, and hunting; mining; construction; and manufacturing. The highest earnings for our sample were in educational services followed by manufacturing, construction, management, and wholesale trade. Again, considering current low unemployment and high demand for workers within the goods-producing fields, employers may be extra willing to hire formerly incarcerated persons (James, 2023). Job training prior to or after release can help the formerly incarcerated obtain promotions and higher wages (James, 2023) and could orient them towards sectors which demonstrate a willingness to both hire and pay well.

IDOC Supportive Programs were Associated with Better Employment Outcomes

We found that participants in IDOC Kewanee Life Skills Re-Entry Center and Illinois work release centers were more likely to have longer employment and higher wages post-release. Prior research on similar work release programs has revealed positive outcomes for participants, such as increased employment and hours worked. This finding suggests that these programs are viable substitutes for traditional correctional programming and ought to be expanded if resources allow (Duwe, 2013; Jung, 2014; Visher et al., 2004). Further research should be conducted to best determine their potential for aiding in successful reentry.

Conclusion

Our sample of 4,430 persons released from IDOC in 2018 had high unemployment and low earnings when tracked through 2021. We found additional employment and wage disparities for Black persons and women. The largest proportion of workers, nearly one-third, worked in administrative support and waste management and remediation services. Those working in the education sector made the highest wages. Those who worked in goods-producing industries rather than service industries had higher wages and longer lengths of employment. Based on our findings, the state as well as local communities should invest in reentry support. Fortunately, the state is experiencing low unemployment and a demand for workers, so this may be a timely opportunity to assist formerly incarcerated individuals with job attainment. Jobs will help them pay for basic expenses for themselves and their families as well as reduce recidivism and taxpayer costs.

Chicago: Illinois Criminal Justice Information Authority. 2023. 38p.

By Tara Wheeler, Julia Bergeron-Smith, George Shaler,

The number of criminal cases referred to Maine courts dropped considerably in 2020 and continued to fall in 2021 as well, according to Prosecutorial Data in Maine: Themes and Trends from 2017-2021, a report compiled by the University of Southern Maine’s Maine Statistical Analysis Center (SAC) for the Maine Prosecutors Association (MPA). “Understandably, the pandemic impacted the number of cases referred to Maine courts in 2020,” says Shira Burns, Executive Director for the MPA. “While the number of cases referred to the courts dropped 13% in 2020, this pattern continued into 2021 though the decline was not as dramatic as the previous year,” explains Burns. The report also found that motor vehicle cases are the most common type of case referred for prosecution at 39%. “Over half of motor vehicle cases—or 22% of all cases— were for operating after suspension (OAS) and operating under the influence (OUI),” mentions lead author Tara Wheeler of USM’s Maine Statistical Analysis Center. “In addition, 17% – or 1 in 6 cases referred to the courts – were for property offenses,” offers Wheeler. The report reveals that while most charge types were down in large part because of the declining number of referred cases, the number of violation charges was up. This increase was driven largely by release violations (e.g., cases in which the individual did not follow their conditions of release). Maine district attorneys (DAs) and their teams work together to prosecute individuals and organizations involved in criminal activity and serve victims of crime. However, while the DAs seek to address serious crime and protect and serve Mainers through data-informed decision-making, prosecutorial data (i.e., case data by year) has never been easily accessible even to prosecutors. To address this issue, the MPA partnered with the Maine SAC to establish statewide and district-level baseline figures and trends that could be detailed in an annual report and shared with key stakeholders and the public. Maine has eight prosecutorial districts, covering anywhere from one to four counties, that are each led by a popularly elected district attorney who serves a four-year term. The eight districts’ populations and geographic areas vary greatly, with the largest district having 295,000+ people in an 835 square mile area (District 2 – Cumberland County) and the least populated district having approximately 67,000 people spread out over 6,671 square miles (District 8 – Aroostook County).

 Portland, ME: Catherine Cutler Institute University of Southern Maine , 2023. 103p.

 By Kourtnie Rodgers, Thomas Strauss 

In response to a critical need of the clients they serve, Twin Falls County Adult Misdemeanor Probation began a program to offer vouchers for clients with financial need in 2007. Vouchers are paid for with funding from the Edward Byrne Memorial Justice Assistance Grant Program and can be used for required pieces of probation including drug testing, substance abuse treatment, and assessments. The goal of providing these vouchers is to reduce the burden of fees for clients who cannot afford to pay for their required conditions and ultimately to reduce recidivism of drug- and/or alcohol-related offenses. Clients are also able to access treatment providers that they may otherwise not be able to afford. This evaluation presents the Idaho Statistical Analysis Center’s (ISAC) review of the program through data collected by Twin Falls County Adult Misdemeanor Probation between October 2018 and September 2021. 

Meridian, ID: Idaho Statistical Analysis Center, 2022. 19p.

By Scottish Government, Justice Directorate

In November 2019, the Cabinet Secretary for Justice commissioned an independent review into the response to deaths in prison custody. The Independent Review of the Response to Deaths in Prison Custody was published in November 2021.

In early 2022, it was decided to bring in an external chair to oversee the implementation of the recommendations. I took up the role in April 2022, forming the Deaths in Prison Custody Action Group soon afterwards.

My first priority was to engage with families who had direct experience of losing a loved one through death in prison custody. A Family Reference Group was formed, which included some families who had contributed to the original Review. The membership has changed and increased over time with four more families joining the Group who were bereaved by the death of a loved one in prison after the Review was published in November 2021.

Families involved in this work are generously sharing their experiences in the hope that the response to the death of a relative in prison is improved for other families in the future. They share a desire to help improve the understanding of factors leading to deaths in prison in order to reduce and prevent more deaths.

The Review recognised the importance of data and analysis, with part of the key recommendation being that an independent body should produce and publish reports analysing data on deaths in custody, identifying trends and systemic issues.

Two important recommendations are aimed at understanding causes of deaths in prison and identifying trends with a view to preventing future deaths. Recommendation 1.1 states that leaders of national oversight bodies should work together with families to support the development of a new single framework on preventing deaths in custody. Recommendation 3.4 asks for a comprehensive review into the main causes of all deaths in prison custody.

I introduced an Understanding and Preventing Deaths in Prison Working Group, which sits under the Deaths in Prison Custody Action Group, to take these recommendations forward.

The Scottish Prison Service publishes data on its website, including date of admission; date of death; age; gender; ethnic group; legal status, and medical cause of death (from 2019 onwards). There has been no published analysis or identification of trends by the Scottish Prison Service or the Scottish Government, despite the data having been publicly available since 2012.

Whilst long overdue, this paper is welcome and presents a high level analysis of the data published by the Scottish Prison Service on deaths in prison between 2012 and 2022. Overall the analysis shows that there has been an increase in the number of deaths in prison over that period. It is the first in a series of reports that will be produced over the coming year. The next stage will be work with the National Records of Scotland to examine causes of deaths in prison in more detail, and to make comparisons with trends in the general population.

I will be particularly interested to see the age distribution of the prison population compared with the general population, and what analysis might tell us about the prevalence of suicide amongst young people in prison.

The healthcare provision across the prison estate and the efficiency of resources to escort people in prison to access medical appointments/treatment will also be an area of interest for future analysis.

This paper represents a start to the important work of improving the data, evidence, and analysis around prison deaths with a view to identifying factors and causes, and to prevent future deaths.

Two important recommendations are aimed at understanding causes of deaths in prison and identifying trends with a view to preventing future deaths. Recommendation 1.1 states that leaders of national oversight bodies should work together with families to support the development of a new single framework on preventing deaths in custody. Recommendation 3.4 asks for a comprehensive review into the main causes of all deaths in prison custody.

I introduced an Understanding and Preventing Deaths in Prison Working Group, which sits under the Deaths in Prison Custody Action Group, to take these recommendations forward.

The Scottish Prison Service publishes data on its website, including date of admission; date of death; age; gender; ethnic group; legal status, and medical cause of death (from 2019 onwards). There has been no published analysis or identification of trends by the Scottish Prison Service or the Scottish Government, despite the data having been publicly available since 2012.

Whilst long overdue, this paper is welcome and presents a high level analysis of the data published by the Scottish Prison Service on deaths in prison between 2012 and 2022. Overall the analysis shows that there has been an increase in the number of deaths in prison over that period. It is the first in a series of reports that will be produced over the coming year. The next stage will be work with the National Records of Scotland to examine causes of deaths in prison in more detail, and to make comparisons with trends in the general population.

I will be particularly interested to see the age distribution of the prison population compared with the general population, and what analysis might tell us about the prevalence of suicide amongst young people in prison.

The healthcare provision across the prison estate and the efficiency of resources to escort people in prison to access medical appointments/treatment will also be an area of interest for future analysis.

This paper represents a start to the important work of improving the data, evidence, and analysis around prison deaths with a view to identifying factors and causes, and to prevent future deaths.

2023. 36p.

By Magnus Lofstrom and Brandon Martin, with research support from Sean Cremin

Key Takeaways: Since a 2009 federal court order to reduce prison overcrowding, California has been at the forefront of reforms aimed at reducing incarceration. One critical reform, Proposition 47—passed by voters in 2014— continues to be at the center of policy discussions. Under Prop 47, prison and jail populations plummeted as did arrests for drug and property crimes after certain offenses were reclassified from felonies to misdemeanors. Furthermore, lower prison populations and expenditures have led to $800 million so far in savings that provided funding for treatment and diversion programs. But Prop 47 may not be the most important change to the criminal justice system in recent years; the pandemic brought challenges that have had lasting impacts on incarceration and enforcement. Driven by larcenies, property crime jumped after Prop 47 compared to the nation and comparison states; with no further deviations until 2021, partly driven by commercial burglaries. Violent crime also diverged over the last decade, with the sharpest deviation at the start of the pandemic. Two years after Prop 47, California’s clearance rate—or reported crimes that lead to an arrest and referral to prosecution—for property crime dropped 3 percent. It then dropped 7 percent in 2022, signaling that a person is half as likely to be apprehended for property crime today, compared to 2014. The clearance rate for violent crime has remained relatively stable for two decades. Jail and prison populations have dropped by a total of 30 percent, but the impact on crime has been modest and limited. With Prop 47, only a rise in auto thefts (3.9%) and car break-ins (3.7%) is tied to lower incarceration; with the pandemic, it was a rise in auto thefts (1.6%) and commercial burglaries (2.1%). After Prop 47, lower clearance rates for larceny (theft without force or threat of force) led to a modest rise in property crime, with more burglaries (2.9%), auto thefts (1.7%), and larcenies (1.1%). After the pandemic, lower larceny clearance rates led to a rise in car accessory thefts (7.3%) and car break-ins (3.9%); burglary clearance rates also dropped, raising commercial burglaries (3.2%). No evidence suggests that changes in drug arrests after Prop 47 or after the pandemic led to any increases in crime. Due to data limitations, we were not able to assess whether Prop 47 or the pandemic led to any changes in substance use and addiction. Focusing on retail theft, fewer cleared property crimes after both Prop 47 and the pandemic led to a rise in commercial burglaries; a drop in the jail population post-pandemic is also tied to a rise in commercial burglaries. Evidence is clearer that retail theft increased due to pandemic responses by the criminal justice system, and the increases were of greater magnitude than increases due to Prop 47. This report builds on our previous research and is the culmination of a year-long effort to examine the impact of Proposition 47 as the reform approaches its 10th anniversary, as well as the impact of the pandemic-related criminal justice responses; it is not an analysis of recently enacted or proposed legislation or upcoming ballot initiatives such as Proposition 36. Determining the factors that can reverse falling rates for cleared property crimes—and in turn raise the likelihood of being apprehended—should be a top priority for California’s policymakers. Legislators also should seek evidence-based alternatives to incarceration, which shows limited success with preventing crime. Understanding these factors and alternatives is vital to developing criminal justice policies, especially as research consistently finds that increasing the likelihood of being apprehended is a more effective strategy for preventing crime than harsher penalties or longer sentences.

San Francisco: Public Policy Institute of California, 2024. 35p.