By Lee Kovarsky

Before their executions, condemned people suffered intensely, in solitude, and at great length. But that suffering is not punishment—especially not the suffering on American-style death rows. In this article, I show that American institutions administer pre-execution confinement as nonpunitive detention, and I explain the consequences of that counterintuitive status. A nonpunitive paradigm curbs, at least to some degree, the dehumanization, neglect, and isolation that now dominate life on death row. It is also the doctrinal solution to a longstanding puzzle involving confinement, execution, and the Eighth Amendment. To understand why pre-execution confinement is nonpunitive, readers need a basic understanding of the experience itself. Most death-sentenced people will lead lives marked by some substantial combination of inadequate nutrition, deficient health care, substandard sanitation and ventilation, restricted movement, and excessive isolation. By the time the state executes its condemned prisoners, they will have spent about two decades in such conditions—up from two years in 1960. The state distributes suffering across this prisoner cohort in ways that bear little relationship to criminal blameworthiness. Almost without exception, however, scholarship and decisional law continue to treat confinement before execution as punishment. Virtually everyone makes the punitive assumption, but there are two reasons rooted in penal theory why they should not. First, confinement before execution does not meet consensus criteria for punishment. It is instead suffering collateral to the state’s interest in incapacitating those who face execution. Second, if pre-execution confinement were to be taken seriously as a punitive practice, then it would be normatively unjustified. More specifically, punitive confinement would represent punishment beyond the legally specified maximum (an execution), and it would be distributed across the death-sentenced prisoner cohort arbitrarily. There is a well-developed body of constitutional law capable of absorbing a nonpunitive version of pre-execution confinement. Under that law, when the state detains people primarily to incapacitate them, that detention is regulatory—not punitive. Due process, rather than the Eighth Amendment, constrains regulatory detention. A nonpunitive approach would reduce unnecessary suffering because due process rules more stringently constrain the state’s treatment of its prisoners. Such an approach would also give the U.S. Supreme Court better answers to the difficult Eighth Amendment questions that have vexed the Justices for decades. 

Virginia Law Review [Vol. 109:1429, 2023.

By Lee Kovarsky

There is a widely held belief that to delay executions, American death-row prisoners strategically defer litigation until the eleventh hour. After all, the logic goes, that the incentives for prisoners who face the death penalty differ from those who do not. Noncapital prisoners typically try to move the terminal point of a sentence (release) forward, and capital prisoners typically try to push that point (execution) back. This theory of litigant behavior—what I call the “Strategic Delay Account,” or the “SDA”—underwrites an extraordinarily harsh institutional response. It primes courts to discount real constitutional grievances and to punish participating lawyers, and it spurs legislatures to restrict crucial remedies. In this article, I explain that the SDA inaccurately describes condemned prisoner behavior, both because it assumes a non-existent incentive structure and because it ignores the major structural causes of delayed litigation. First, deferred litigation is risky, and fortune disfavors the bold. Procedural doctrines that operate across post-conviction law strongly incentivize the promptest conceivable presentation of claims. Second, prisoners often omit challenges from early rounds of litigation not because they have done so strategically, but instead because some claims are inherently incapable of being asserted at that time. Third, the volume of end-stage litigation reflects the comprehensive failure of American jurisdictions to provide adequate legal services; condemned prisoners are often functionally unrepresented from the moment early-stage proceedings conclude until the state sets an execution date.

New York University Law Review Issue: Volume 95, Number 5, November 2020

By Sheena Liberator and Maria Jose (MJ) Vides

In March 2020, the Los Angeles County Board of Supervisors (BOS) unanimously adopted the “care first, jails last” vision, a transformative framework for safety grounded in support and services as alternatives to incarceration or bail.1 Three years have passed and people of color, people experiencing homelessness, and those with unmet mental health needs continue to languish in county jails.2 County staff attribute implementation delays to a shortage of community-based behavioral health workers. The Vera Institute of Justice’s (Vera’s) conversations with community-based providers—detailed in this brief—document how the COVID-19 pandemic, long-standing difficulties with contracting, and chronic underinvestment in infrastructure have resulted in the current workforce shortage. To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.  

To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.

Publication Highlights

• Local providers across the spectrum of services and service planning areas are experiencing staffing shortages resulting from the COVID-19 pandemic and competition with Los Angeles County.

• Capacity-building support is needed to strengthen community-based service providers, as are changes to contracting, billing, and reporting procedures.

• To expand capacity, Los Angeles County should, among other things, implement pretrial services by increasing budgetary allocations for community-based service providers and restructuring county contracting processes and technical assistance programs.

To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.

Publication Highlights

• Local providers across the spectrum of services and service planning areas are experiencing staffing shortages resulting from the COVID-19 pandemic and competition with Los Angeles County.

• Capacity-building support is needed to strengthen community-based service providers, as are changes to contracting, billing, and reporting procedures.

• To expand capacity, Los Angeles County should, among other things, implement pretrial services by increasing budgetary allocations for community-based service providers and restructuring county contracting processes and technical assistance programs.To effectively implement a “care first” vision and meet the demand for community-based pretrial services, Vera recommends immediate action steps to remedy ongoing issues with the county’s contracting processes, lower barriers to entry for small providers, and invest in urgent capacity-building and workforce development beginning this budget cycle.

Publication Highlights

• Local providers across the spectrum of services and service planning areas are experiencing staffing shortages resulting from the COVID-19 pandemic and competition with Los Angeles County.

• Capacity-building support is needed to strengthen community-based service providers, as are changes to contracting, billing, and reporting procedures.

• To expand capacity, Los Angeles County should, among other things, implement pretrial services by increasing budgetary allocations for community-based service providers and restructuring county contracting processes and technical assistance programs.

 New York: Vera Institute of Justice, 2023. 8p.

By Bea Halbach-Singh Jack Norton Stephen Jones Jessica Zhang

Over the past 50 years, Kentucky has become one of the most incarcerated places on earth, building a broad system of correctional control that is made up of local jails, state and federal prisons, and a vast array of supervision and monitoring programs. Systems of correctional control have increased in number and scope at the same time as the state has undergone significant economic restructuring. Kentucky’s economy over the last 30 years has shifted away from goods-producing industries—such as manufacturing, construction, and mining—and toward service-providing industries such as health care, social assistance, educational services, and other professional services, with significant differences in how this transformation has played out regionally.1 In the places hardest hit by the decline of manufacturing and coal extraction industries, local governments have attempted to turn their criminal legal systems into revenue generators to fund jail and court operations. Counties have raced to collect per diem fees paid by the Kentucky Department of Corrections (DOC), federal agencies, and other Kentucky counties by building bigger jails to incarcerate people for other authorities. Counties also collect revenues from an elaborate system of jail- and court-related fines and fees collected from criminalized people, who are disproportionately poor. Private companies collect revenues by contracting with county jails, and prisons, Kentucky’s most comprehensive effort to reform the criminal legal system to date—House Bill 463 (HB 463), “The Public Safety and Accountability Act”—passed in 2011. While it proposed to reduce the footprint and cost of Kentucky’s carceral system, it resulted in more criminalization and less health and safety. During a decade in which communities increasingly struggled with drug use, substance use disorders, and overdose deaths and needed real solutions to tackle this public health crisis, Kentucky’s lawmakers continued to pass laws allowing prosecutors and judges to impose harsh penalties for drug-related offenses. By 2020, Kentucky had the nation’s second-highest drug overdose mortality rate.4 Lawmakers also created a web of supervision programs that were intended to divert people charged with drug-related crimes away from jail and prison. In practice, by imposing onerous conditions and associated costs that make it impossible for many people to meet their requirements, these systems have instead become a major driver of re-incarceration. Throughout the writing of this report, Vera Institute of Justice (Vera) researchers spoke with people across the commonwealth who had experienced criminalization.5 Most were recovering from substance use issues. Out of these conversations, a clear picture emerged of the deep connections between poverty and economic decline and the growth of incarceration, supervision, and surveillance across the state. Interviewees shared that stable housing, meaningful work, connections with a larger community (especially other people in recovery), and treatment—instead of correctional surveillance and incarceration—were the most important resources that helped them recover. In their experiences, court-mandated supervision and drug treatment programs carried onerous restrictions on their mobility and autonomy and included unaffordable fines and fees that decreased their ability to support themselves financially. These conditions—combined with the threat of reincarceration in case of relapse—presented obstacles, rather than paths, to recovery for people experiencing substance use issues. Overall, people experiencing poverty and those in need of treatment described a criminal legal system that causes harm in their lives, instead of providing them with the resources that might enable them to survive and thrive.

New York: Vera Institute of Justice, 2023. 62p.

By Maria Rafael

The United States’ criminal legal system is often described as a two-tiered system that treats people differently based on their social status, wealth, and power.1 In a two-tiered criminal legal system, those with money, social connections, or political influence may receive preferential treatment in the form of lighter sentences, leniency with respect to court-ordered obligations, or even freedom.2 Meanwhile, people without those advantages are likely to face harsher punishments, limited access to legal resources or representation, and even mistreatment from system actors.3 In the context of fines and fees, having the resources to settle court-imposed charges can make the difference between a quick resolution of a case or an extended entanglement with the criminal legal system. Those who struggle to pay their debt extend the length of time of their involvement with and obligations to the courts, which can require regular payments, court appearances, community service, and even incarceration. All of this creates chances for people to fail at meeting these obligations, which can trigger a host of legal and collateral consequences that extend the period of surveillance further still. In short, those without money have far more punitive experiences than those who have the resources to quickly pay off their debts 

New York: Vera Institute of Justice, 2024. 37p.

Edited by Gregor Feindt, Anke Hilbrenner, and Dittmar Dahlmann   

Sport was an integral part of life in camps during the twentieth century, even in Nazi concentration camps or in the Soviet Gulag. Traditionally perceived as a symbol of equality, play, and peacefulness, sport under such unexpected circumstances irritates most observers, back then and today. This volume studies the irritating fact of sport in penal and internment camps as an important insight into the history of camps. The authors enquire into case studies of sport being played in different forms of camps around the globe and throughout the twentieth century. They challenge our understanding of camps, question the dichotomy of insiders and outsiders, inner-camp hierarchies, and the everyday experience of violence. This fresh perspective complements the existing camp studies and gives way for the subjectivity of camp inmates and their action.

Göttingen : Vandenhoeck and Ruprecht, [2018] 283p.

By Catherine Cox and Hilary Marland

"Now regarding the prisoner as a moral patient, the paramount object is to render him as amenable as possible to the reformatory process.... The isolation that depresses the animal nature of the prisoner, and lowers the whole tone of the nervous system, produces a corresponding effect upon the mind... In consequence of the lowering of the vital energies, the brain becomes more feeble, and, therefore, more susceptible. The chaplain can then make the brawny navvy in the cell cry like a child; he can work on his feelings in almost any way he pleases; he can so to speak, photograph his own thoughts, wishes, and opinions, on his patient's mind, and fill his mouth with his own phrases and language"

Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2022.

By Denise Rodriguez, Keri Richardson, Zoë Thorkildsen, Rodney Monroe, Harold Medlock. Stephen Rickman

In the mid-1800s, more than 40 percent of all slaves arriving in the US entered through Charleston, South Carolina. The city’s history and its role in the slave trade continue to influence the city and its community—most apparently in the 2015 massacre at Mother Emanuel Church. This tragedy served as an example to the nation of how a community can come together to work toward acknowledging and addressing racial tensions and ultimately achieve healing and forgiveness. The Charleston City Council further acknowledged this movement on June 19, 2018, when it issued a two-page resolution as an apology for its role in the slave trade and as a statement toward racial reconciliation. To advance such efforts, in June 2019 the city created a Diversity, Racial Reconciliation and Tolerance manager position. Today, Charleston’s rich history provides context regarding the culture and perspectives of the local community and its relationship with the police. The community's efforts to address systemic racial bias in policing since the early mid-twentieth century provide historical context to the depth of the issues and challenges in developing and maintaining strong relationships between the local law enforcement in the Charleston area and the community. The Charleston Police Department (CPD), which employs 458 sworn police officers and 117 civilians and serves a population of more than 136,000, is increasingly becoming an active community partner in conversations and efforts to address the city’s past and present challenges surrounding race. Efforts to strengthen police-community relationships have been at the forefront of the city’s priorities. The Illumination Project, established in late 2015, “created a unique, community-wide experience for both citizens and police with the purpose of further improving their relationship, grounded in trust and legitimacy.”  The Illumination Project identified many strategies to improve police-community relationships, including the establishment of the Citizen Police Advisory Council. Although these efforts were important steps in strengthening relationships between police and community stakeholders, continued concern about potential racial bias, also brought forth during a Charleston Area Justice Ministry (CAJM) Nehemiah Call to Action Assembly in 2016, led the City Council to vote in favor of an independent audit of the CPD in November of 2017. Further adding to this urgency were the findings from the College of Charleston’s report, The State of Racial Disparities in Charleston County, South Carolina 2000-2015, which noted racial disparities and the linkage to structural racism and economic inequality. The call for an audit also stemmed from growing interest among city officials and the community to address concerns about racial bias in the CPD’s procedures and practices. Subsequently, the City Council, city officials, and community stakeholders worked together to develop a request for proposals, review the proposals, and select an independent auditor. 

In January 2019, the City of Charleston, through a competitive bid, selected the CNA Institute for Public Research (CNA) to conduct a racial bias audit of the CPD.

Goals and Objectives of The Audit

CNA’s audit was designed to accomplish the following:

• Assess, monitor, and assist the CPD, in concert with the community, in uncovering any aspects of implicit bias or systemic and individual racial bias.

• Assess the effect of enforcement operations on historically marginalized and discriminated against populations, particularly those in the African-American community.

• Provide recommendations for reforms that improve community-oriented policing practices, transparency, professionalism, accountability, community inclusion, fairness, effectiveness, and public trust, taking into account national best practices and community expectations.

• Engage the community to understand both the experiences and the expectations of interactions with CPD.

Arlington, VA: CNA, 2019. 136p.

By Zoë Thorkildsen, Emma Wohl, Lily Robin, James R. “Chip” Coldren, Jr.

Correctional officers work in dangerous environments that increase their risk of injury. Their rates of nonfatal injuries are among the highest across all occupations (Bureau of Labor Statistics 2016). In recent decades, technology in correctional settings has advanced significantly, and new equipment and devices to improve correctional officer safety have become increasingly prevalent. However, equipment deployment across facilities varies. In addition, little is known about the specific equipment modalities used in different facilities, the effectiveness of this technology, or how correctional officers and other facility personnel perceive safety equipment. In 2010, the Government Accountability Office (GAO) (2011) surveyed the Federal Bureau of Prisons (BOP) and correctional departments in 14 states to document available correctional officer safety equipment, review the policies governing the use of these technologies, and assess perceptions of their effectiveness among correctional officers, management personnel, and union members. The GAO identified a variety of safety equipment types used in federal prisons. Correctional officers working within the secure perimeter of BOP institutions are generally required to carry a radio, body alarm, and keys while on duty. BOP policy also gives correctional officers the option to carry a flashlight, latex or leather gloves, and stab-resistant vests. Handcuffs are also generally optional, unless the correctional officer works in certain posts, such as controlling offender movement. Other types of safety equipment not routinely carried by federal correctional officers include pepper spray, batons, and conducted energy devices. However, the data collection and analysis methods used in the GAO study had two limitations. First, the 14 state departments of corrections the GAO surveyed were selected non-randomly. As such, their findings regarding state facilities are not generalizable. Second, although they sought officials’ opinions about the effectiveness of the safety equipment, the GAO report did not present an objective empirical assessment to substantiate the officials’ views. As described in detail below, CNA’s proposed study builds on the GAO study. We propose conducting a further exploratory study to objectively determine the effectiveness of safety equipment in a sample of correctional facilities, along with a content analysis of policies and procedures related to correctional officer safety equipment. As noted in the 2011 GAO report, the field requires more research on the use and effects of safety equipment by correctional officers. CNA’s study addresses this gap by analyzing safety equipment use in a sample of seven adult correctional facilities in the United States in depth. We provide preliminary evidence about the association between the use of safety equipment and correctional officer safety, as measured by on-the-job assaults and injuries. In addition, we summarize how safety equipment is used situationally, as well as the policies and procedures that guide the use of this equipment across the eight study sites. Our research improves the evidence base
related to safety equipment efficacy and will guide future research and technical assistance opportunities.

Arlington, VA: CNA, 2019. 40p.

By: Independent Monitoring Boards

Property – having your own possessions that are important to you – is vital to those who are living in the constraints of a prison environment, deprived of their liberty, with little connection to the outside world.

The national scale of loss and damage to prisoners’ property shown by IMBs monitoring in adult prisons and YOIs, and the detrimental impact this has on these men, women and children’s quality of life, is unacceptable.

Property loss and damages severely harmed prisoners’ mental health and wellbeing, causing huge amounts of distress. It also undermined their safety, dignity and humanity, physical health, and prospects for progression and release.

Many of these losses have been unforgivable: a disabled prisoner living without his prosthetic limb for over a year; critical evidence for a prisoner’s sentencing missing; the irreplaceable letters from prisoners’ loved ones who have died while they’ve been inside misplaced.

The causes of lost property have been well-documented. Over many, many years almost all IMBs in adult prisons and YOIs have repeatedly told ministers and the Prison Service that they need to get a grip and have made recommendations about how to do so. In the latest tranche of annual reports alone, nearly 60 IMBs asked 75 property related questions to governors and directors, the service and ministers.

In September 2022, the Prison Service implemented a new policy framework with the aim of addressing the main problems continually identified by IMBs nationally in recent years and improving prisoner outcomes. During its development, and even now, IMBs receive assurances that the framework is doing just that. Two years later, however, the wider findings of the IMB suggest there is little to no evidence the framework has made any difference.

As the causes of property loss have been so well evidenced by local IMBs over the years, this thematic monitoring report focuses much less on the process and system failures (although there are many) and far more on the poor outcomes for prisoners. It also highlights good practice in prisons and YOIs that has helped to prevent or resolve property loss. Although these effective local initiatives aren’t a substitute for national solutions, these examples show that it can be done, and this is not an inevitable, intractable problem.

It is my hope as National Chair that this is the last time IMBs will have to set out these recurring issues and the scale of this problem, and that the new government will finally overhaul property processes and systems and invest in much-needed immediate and long-term resolutions, including a national digital tracking system. This will also be a significant investment in staff time, prison safety, improving prisoners’ lives, their mental health and wellbeing, and their perceptions of staff, fair treatment and the system overall.

Independent Monitoring Boards (IMBs) monitor and report on the conditions and treatment of those detained in every prison in England and Wales, as well as every immigration detention facility across the UK.

This report provides an overview of outcomes for men and women in adult prisons and children and young people in young offender institutions (YOIs), whose property has been lost or damaged.

It is based on analysis of:

• 71 survey responses from 64 IMBs monitoring in adult prisons and YOIs completed in early 2024 (see Annex 1).

• 106 Boards’ latest published annual reports, published until 31 July 2024.

• Property applications (a written or verbal representation to Boards)

• consisting of:

  • Data on the number of property applications received in the above annual reports.

  • 1732 property-related applications received via the 0800 free phone line between April 2020 and July 2023.

London: The Independent Monitoring Boards, 2024. 21p

By: Dr. Mike Lauder

On 17 July 2002, David Blunkett announced a White Paper, Justice for All (Home Office, 2002). He stated: “In protecting the public, we are placing emphasis on dealing with dangerous, violent and sexual offenders. Those not sentenced to lie imprisonment but who are nevertheless a danger to society will remiain custody until they are considered safe for release. An indeterminate sentence will ensure that they will only be released under strict supervision when they are no longer assessed to be a threat to the public”. (HC Deb, 17 July 2002, c287).

The Imprisonment for Public Protection (IPP) sentence was introduced under the Criminal Justice Act 2003. The IPP sentence was abolished in 2012 but this action was not retrospective. By June 2024, there were still 2,734 IPP prisoners (1,132 unreleased and 1,602 recalled) and, of those unreleased, 99 percent had served time beyond their tariff (Ministry of Justice, 2024).

There are now some who believe that keeping this cohort of people in prison is uniquely cruel as there is evidence that to do so might create unwarranted psychological harm (Grimshaw, 2022). Members of Parliament now recognise that the IPP system is fundamentally flawed. What was devised to be a social good has, some would argue, become one that creates harm (Justice Committee, 2022).

The aim of this working paper is to describe the role that may have been played by the flaws inherent within the ‘Perfect World Paradigm’ when it is used to make public policy.

Centre for Crime and Justice Studies’ working paper series; London: Center for Crime and Justice Studies, 2024

By Benjamin Heller

New York City already has a plan to close Rikers Island by 2027 and replace it with a smaller, more humane borough-based jail system. City leader now have a unique opportunitiy to rightsize the Department of Correction: recalibrating its budget and reshaping its workforce to meet the needs of a signficantly smalled jail system and unlocking millions of dollars in savings that could be reinvested in commnites. As the transition to a borough-based jail system draws nearer, DOC needs a blueprint to right size and reinvent itself rather than simply export the current dysfunction on Rikers Island to new location. Ultimately, New York City’s leaders must create this blueprint now to provide DOC and other relevant agencies with adequate time and guidance to phase in new policies and practices before the completion of the borough-based jail system.

New York: Vera Institute of Justice, 2022

By: Rongqin Yu, NiklasLångstro, Mats Forsman, Arvid Sjolander, Seena Fazel, Yasmina Molero

Objectives

To examine Differences in recidivism rates between different prisons using two designs— between-individual and within-individual—to account for confounding factors.

Methods

We examined recidivism rates among 37,891 individuals released from 44 Swedish prisons in three security levels, and who were followed from 2006 to 2013. We used longitudinal data from nationwide registers, including all convictions from district courts. First, we applied a between-individual design (Cox proportional hazards regression), comparing reconviction rates between individuals released from prisons within the same security level, while adjusting for a range of individual-level covariates. Second, we applied a within-individual design (stratified Cox proportional hazards regression), comparing rates of reconviction within the same individuals, i.e., we compared rates after release from one prison to the rates in the same individual after release from another prison, thus adjusting for all time-invariant con founders within each individual (e.g. genetics and early environment). We also adjusted for a range of time-varying individual-level covariates.

Results

Results showed differences in the hazard of recidivism between different prisons in between-individual analyses, with hazards ranging from 1.22 (1.05–1.43) to 4.99 (2.44 10.21). Results from within-individual analyses, which further adjusted for all time-invariant confounders, showed minimal differences between prisons, with hazards ranging from 0.95 (0.87–1.05) to 1.05 (0.95–1.16). Only small differences were found when violent and nonviolent crimes were analyzed separately.

Conclusions

The study highlights the importance of research designs that more fully adjust for individual-level confounding factors to avoid over-interpretation of the variability in comparisons across prisons.

PLoS ONE 17(5): e0267941. https://doi.org/10.1371/journal.pone.0267941, 2022.

By Abhay P. Aneja and Carlos F. Avenancio-Leon

We document that incarceration significantly reduces access to credit, and that in turn leads to substantial increases in recidivism, creating a perverse feedback loop. In the first part of the paper, we use random assignment of criminal cases across judges to document significant post-release reductions in credit outcomes, including credit scores, mortgages, auto loans, and lender assessment of income. In the second part, we use sharp discontinuities in lending based on credit scores to show that this loss of nancial access feeds back into future crime. Consequently, the financial distortions that imprisonment creates undermine the crime-reduction goal of incarceration

Unpublished paper, 2020. 75p.

By Megan Denver, Ben Struhl

The project that is presented in this report aimed to conduct process, impact, and cost-effectiveness evaluations for the Massachusetts Department of Correction (MA DOC) and the Hampden County Sheriff’s Office (HCSO) program. The project was based on three main research questions: (1) which components of the HCSO program are fully and faithfully implemented, and which aspects contain challenges for staff participants and residents? Which parts of HCSO’s model are likely contributing to any detected causal effects? (2) Does the step-down re-entry program improve reintegration preparedness and recidivism relative to the traditional re-entry pathway? And (3), is the jail step-down program cost-effective relative to housing the same people in prison? The paper describes the research design, methods, and analytical and data analysis techniques, and notes the expected applicability of the research for policymakers in different jurisdictions. Appendix A discusses things to consider when developing a step-down program, and Appendix B provides cost estimates excluding statutorily required programs.

Boston, MA: Northeastern University, 2024. 46p.

By Rosie Chalam-Judge, Eleanor Martin

Community Sentence Treatment Requirements (CSTRs), comprising of Alcohol Treatment requirements (ATRs), Drug Rehabilitation Requirements (DRRs), and Mental Health Treatment Requirements (MHTRs), aim to address health needs of individuals on a community sentence and ultimately reduce reoffending.

While there is existing evidence indicating that in some circumstances alcohol, drug, and mental health treatment can have some positive effects on reoffending outcomes, research related to CSTRs is limited. To expand the evidence, MoJ have been working in partnership with HMPPS, DHSC and NHS England to deliver a programme of analytical work to robustly assess the effectiveness of CSTRs, including the Better Outcomes Through Linked Data (BOLD) programme. The BOLD substance misuse team carried out a project exploring pathways between probation and drug and alcohol treatment services and are undertaking further analysis to continue the investigation of the potential attrition between sentencing and accessing treatment services.

This impact evaluation aimed to compare justice outcomes of those sentenced with a CSTR against two comparison groups: those sentenced to community sentences without a CSTR and those sentenced to short custodial sentences. The analysis explored the rate of successful completion of community sentences and proven reoffending measures, including reoffending rate, frequency of reoffending, days to first reoffence, reoffending resulting in custody rate and frequency of reoffending resulting in custody.

There are differences in the characteristics of individuals who are sentenced with each type of CSTR and those who are not. To account for this, a statistical technique called propensity score matching (PSM) was used. This method aimed to create matched control groups of individuals who did not receive a CSTR but were as similar as possible to the groups of individuals who were sentenced to each type of CSTR, so any differences detected between the groups were likely due to whether they received a CSTR sentence or not. While over a hundred variables were included in the analysis, there may be unobserved characteristics not captured, or not captured accurately, in the data available which could influence CSTR sentencing and reoffending outcomes. This is a consideration for any PSM analysis. The analysis also only compared individuals sentenced with and without an ATR, DRR, or MHTR – data were not available on whether they attended, engaged with, or completed treatment. More detail can be found in the methodology section.

This analysis used 2018 sentencing data to allow sufficient time to measure outcomes and to avoid the impact of the COVID-19 pandemic. Recent investments and initiatives have since been implemented to improve and expand the CSTR provision, therefore this evaluation forms a baseline measure of their impact.

Main findings

Justice outcomes of those sentenced with each type of CSTR and the matched control groups were compared and tested for significance. The matched control groups are referred to as those on a community sentence without a CSTR and those released from a short custodial sentence. These groups are matched to have similar characteristics to each CSTR group, including reported drug misuse, alcohol misuse, and mental health issues. The results were largely positive for ATR and MHTR recipients, with mixed results for DRR recipients. Reoffending rates and other statistically significant results are included in this summary, see section 4 for the full results. Due to rounding, the differences between some figures may appear to not sum exactly.

Successful community sentence completion rate

• The data indicated 67% of ATR recipients, 41% of DRR recipients and 78% of MHTR recipients successfully completed their community sentence. This means they served their sentence term without early termination, for example due to a breach or further offence. It was not possible to accurately match individuals in the treatment groups (ATR, DRR, and MHTR recipients) with individuals who did not receive a CSTR to compare sentence completion outcomes, due to availability issues with the data

Reoffending outcomes for alcohol treatment requirement (ATR) recipients compared with individuals sentenced without a CSTR

• Reoffending rates were very similar between ATR recipients and recipients of a community sentence without a CSTR (42% and 40% respectively) and ATR recipients and short custodial sentence recipients (45% for both). There were no statistically significant differences, therefore this analysis did not provide evidence to indicate that receiving an ATR impacted the reoffending rate compared with recipients of community sentences without a CSTR or short custodial sentences.

• ATR recipients, when compared to those on a community sentence without a CSTR, took 12.42 more days on average to reoffend (118.93 days for ATR recipients and 106.51 days for community sentence recipient on average) and were less likely to reoffend and receive a custodial sentence by 4 percentage points (33% and 38% of those who reoffended, respectively) – these were statistically significant results.

• Compared with those released from a short custodial sentence, ATR recipients reoffended slightly less frequently with 0.26 fewer reoffences on average (1.73 reoffences on average for ATR recipients and 1.99 for short custodial sentence recipients) and took 12.07 more days on average to reoffend (118.32 days for ATR recipients and 106.25 for short custodial sentence recipients on average). They were less likely to reoffend and receive a custodial sentence by 5 percentage points (34% of ATR recipients who reoffended and 39% of short custodial sentence recipients who reoffended) and were convicted an average of 0.54 fewer reoffences resulting in a custodial sentence (1.57 reoffences for ATR recipients and 2.12 for short custodial sentence recipients on average) – these were statistically significant results.

Reoffending outcomes for drug rehabilitation requirement (DRR) recipients compared with individuals sentenced without a CSTR

• For DRR recipients, there was no statistically significant difference between reoffending rates (63% for both DRR recipients and recipients of a community sentence without a CSTR, 64% for both DRR and short custodial sentence recipients), therefore this analysis did not indicate that receiving a DRR sentence impacted the reoffending rate compared with recipients on a community sentence without a CSTR or short custodial sentences.

• Compared with recipients of a community sentence without a CSTR, DRR recipients reoffended slightly more frequently with 0.18 more reoffences on average (3.55 reoffences for DRR recipients and 3.37 reoffences for recipients of a community sentence without a CSTR, on average), and took on average 4.33 fewer days to reoffend (86.64 days for DRR recipients and 90.97 days for recipients of a community sentence without a CSTR, on average). Although small, these were statistically significant differences.

• DRR recipients, when compared with short custodial sentence recipients, reoffended less frequently with 0.38 fewer reoffences on average (3.56 reoffences for DRR recipients and 3.93 reoffences for short custodial sentence recipients, on average) and took 12.28 fewer days on average to reoffend (86.66 days for DRR recipients and 98.93 days for short custodial sentence recipients, on average). They were less likely to reoffend and receive a custodial sentence by 6 percentage points (47% of DRR recipients and 53% of short custodial sentence recipients), and were convicted of fewer reoffences resulting in a custodial sentence with 0.58 fewer reoffences on average (3.20 reoffences for DRR recipients and 3.78 reoffences for short custodial sentence recipients, on average) – these were statistically significant results.

• These results could be due to multiple reasons, including delay or difficulty in accessing treatment, and increased supervision by the Probation Service of DRR sentences compared with community sentences potentially providing more opportunities for reoffences to be detected. These are discussed further in the discussion and conclusion section.

Reoffending outcomes for mental health treatment requirement (MHTR) recipients compared with individuals sentenced without a CSTR

• This analysis indicates MHTR recipients had a lower reoffending rate than those on a community sentence without a CSTR by 8 percentage points (27% for MHTR recipients and 34% for recipients of a community sentence without a CSTR) and short custodial sentence recipients by 9 percentage points (27% MHTR recipients and 36% short custodial sentence recipients). These were statistically significant differences.

• Compared with short custodial sentence recipients, MHTR recipients reoffended less frequently with 0.53 fewer reoffences on average (1.01 reoffences for MHTR recipients and 1.54 reoffences for short custodial sentence recipients, on average), were less likely to reoffend and receive a custodial sentence by 17 percentage points (28% of MHTR recipients and 45% of short custodial sentence recipients) and were convicted of fewer reoffences resulting in custodial sentence with 0.69 fewer reoffences on average (1.39 reoffences resulting in a custodial sentence for MHTR recipients and 2.08 reoffences for short custodial sentence recipients, on average) – statistically significant results.

Conclusion

These findings indicate being sentenced with an ATR, DRR, or MHTR had a positive effect on reoffending outcomes compared with short custodial sentences, which is in line with previous research findings. However, the results report mixed effects of CSTRs on reoffending outcomes compared with community sentences without CSTRs. Further research would be needed to understand the reasons behind these findings. There are some key considerations when considering the implications of the results:

• As CSTRs may involve closer and more intensive supervision from probation and clinical staff than those on a community sentence without a CSTR, some of which receive little formal oversight, it may be that reoffences are more likely to be detected for those sentenced with a CSTR. This may diminish the ability to detect reoffending benefits of CSTRs, if present.

• Delay in accessing or commencing treatment may also influence reoffending outcomes, as previous research has demonstrated engagement in drug and alcohol misuse treatment can reduce reoffending (see section 2.2) and an analysis of pathways into treatment for ATR and DRR recipients found there can be long delays before attending treatment.

• Only reoffending within one year of sentence (or release for short custodial sentence recipients) was included and the effects on offending behaviour of CSTR sentencing may take longer to become apparent. CSTR sentencing and treatment may also have impacts that were not measured in this analysis, for example on health, employability, and social support. Overall, the findings of this impact evaluation demonstrate why additional CSTR investment and development in CSTRs has been pursued in recent years, and therefore it is recommended this analysis is repeated in 2026/27 to assess whether the impact of CSTR sentencing has changed over time. The data used have limitations and there are caveats that should be considered, for example the quality or type of treatment received by those sentenced with a CSTR is not consistent – see sections 3.4 and 3.5 for more information.

Ministry of Justice Analytical Series; London: Ministry of Justice, 2024. 80p.

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.