Alternatives to Incarceration
Summary and Keywords
Alternatives to incarceration are more than options, they have evolved into sentences of their own accord. Originally, probation and prison were the two major sentences; however, the concept of intermediate or graduated sanctions emerged in the 1980s and evolved throughout the 1990s. While alternatives to incarceration were considered options, they are now recognized as intermediate sanctions, graduated sanctions, and just plain sentencing options. This emergence occurred during the time that probation-plus-conditions sentences spiked, so that the average probationer now has over 17 standard conditions. With Justice Reinvestment Initiatives as a national effort to reduce the impact of mass incarceration policies, the JRI policy effort the has served to legitimize sentences that used to be considered “alternatives” by incorporating risk/need assessments, legislation to reduce sentence lengths and incarceration sentences, and changes in practices to address noncompliant probationers and parolees. Here, a new conceptual model is proposed that integrates sentencing options with results from a risk and need assessment depending on various types of liberty restrictions. Given the need to reduce prison overcrowding, there is an even further need to examine how different sentencing options can be used for different type of individuals.
Alternatives to incarceration is a term that signifies responses that are designed to avoid the use of incarceration at various points in the justice system—arrest, pretrial, jail, prison, and semi-incarceration facilities. For adjudicated individuals, alternatives to incarceration generally refers to sentences or sanctions that are provided in lieu of a jail or prison sentence, hence the term alternative. The alternatives could actually be considered a class of sentences justified on their own accord as fair, parsimonious, and proportional to the convicted criminal behavior. The term alternative can also signify that the system has a number of sentencing options where incarceration can be used. The distinction between a justified replacement for an incarceration sentence and an appropriate sentence in its own right depends on the state of sentencing in different jurisdictions. Probably most perplexing is that the same sentencing options can be considered both rightful sentences and alternative sentences in the same jurisdiction. In many instances, alternatives are used as sanctions for individuals on probation or parole, only adding to the many ways alternatives are being used. The term alternative can have different meanings in various contexts, both at the system level as well as at the individual sentencing level.
Essentially, the concept of alternatives to incarceration is no longer an alternative, but part of the legitimate sentencing options. First, what the sentencing options look like, as well as some of the literature behind the various forms, is examined. Then, the legitimatization of sentencing options is explored by looking at the Justice Reinvestment Initiative. Finally, the discussion turns to how these options can build on reducing recidivism, through sentencing options that meet the needs of individuals in the system.
What Do Sentencing Options Look Like?
Within the framework of sentencing options, there are two polar extremes: probation and prison. Probation is generally considered the sentence option for less serious offenses, and individuals with less serious criminal histories. Incarceration is generally reserved for those with more serious offenses and histories. In between probation and prison are a number of sentencing options that use features from both probation and incarceration to impose punishment and controls on the individual (Morris & Tonry, 1991). The placement in incarceration versus probation often depends on the sentencing culture of the jurisdiction, including guidelines and/or normative expectations. Generally, the sentence is influenced by the severity of the offense, the criminal history of the individual, and the nature of “like” sentences in the jurisdiction. The decision about what type of punishment to use also considers whether the goal is incapacitation, rehabilitation, retribution, or deterrence. Often, the sentencing goals are convoluted, with an emphasis on more than one area. However, as shown in Figure 1, while sentencing options use a variety of restraints, restrictions, and controls as punishment, they can offer a series of treatments, services, and interventions alongside these controls. More specifically, a number of sentencing options can be, and are, used as a means to reintegrate offenders back into the community, such as halfway houses, some intensive supervision probations/paroles, and electronic monitoring (Bonta & Motiuk, 1987; Hartman, Friday, & Minor, 1994; Petersilia & Turner, 1993).
Figure 1 depicts an optimal sentencing scheme that offers a number of options ranging from probation to prison. The community sanctions vary based on the number and type of restrictions that occur. Figure 1 predisposes the placement based on the risk and needs that an individual presents (discussed below). The figure integrates the use of risk for future justice involvement and needs (for factors that are changeable) in identifying the appropriate sentencing option. The degree of restriction is often viewed as a form of punishment, which is based on different application principles.
A few cautionary notes should be made regarding intermediate sanctions falling between probation and prison. First, an individual has the right to choose to participate in the programs, particularly treatment programs like problem-solving courts, that new sentencing options offer. For example, an individual may be sentenced to a residential treatment facility, but the individual has the right to refuse participation in the treatment facility. The second consideration is how individuals are selected for the sentencing options. Some of the programs/options have set eligibility criteria, while others do not. That is, a sentencing judge can determine a probation or prison/jail sentence, but many of the sentencing options that fall between probation and prison require the justice-involved individual to agree to participate in the program/sentencing option.
Setting as the Form of Structural Liberty Restrictions
The setting for the punishment determines the amount and degree of liberty restrictions imposed on an individual. Besides the setting where the person serves the sentence, the requirements of the sentence may also define the restrictions, limitations, and civic responsibilities of the individual. That is, the greater the number of restrictions imposed, the more the individual’s daily activities will be monitored and/or controlled by the state. The implication is that the number of controls imposed on an individual can be determined by the public safety issues of an individual, and it may not be merely reflect the setting of a person. With the advent of controls in the community, the line between incarceration and community is often blurred, and this affects the sentencing options. It should also be noted that the length of time that the punishment is imposed—the sentence length—varies by jurisdiction, and that the longer a sentence, the more of an impact the setting (and conditions imposed) has on the person. Next, the literature on the effectiveness of incarceration and numerous alternatives that have emerged over the past few decades are discussed.
Incarceration can occur in a prison or jail setting. The imposition of an incarceration sentence punishes the person by imposing the most extreme liberty restrictions, which include total confinement (i.e., 24/7) as well as total control over daily decisions. Liberty restrictions during confinement involve a loss of the ability to make decisions about movements and activities as well as key survival decisions about food, clothing, and shelter. The “total institution” actually exercises control over every aspect of a person’s life, including psychological, spatial, and financial aspects, as well as isolating the person from support systems like families and children.
With all these restrictions, a question then arises: “Is incarceration worth it?” What is the overall effectiveness of incarceration on future offending behavior? How well does incarceration prevent individuals from committing more crime? In a meta-analytic study of the relationship between incarceration and recidivism, Gendreau, Goggin, Cullen, and Andrews (2000) found that the more time an individual spends in prison, the more likely they are to recidivate. They argue that prisons are actually “schools of crime” rather than a deterrent. Simply being admitted to a super-max prison increased an individual’s likelihood for committing another violent crime within three years of release (Mears and Bales, 2009). And, incarceration does not reduce recidivism and might instead increase failure rates (Nagin, Cullen, & Jonston, 2009). Since incarceration has not been proven to reduce recidivism, and it seems to increase it, alternatives are seen as suitable punishments that achieve desired goals but do not have the same negative effect on the ability of individuals to be crime- and/or drug-free (Gendreau et al., 2000; Mears & Bales, 2009; Sung & Lieb, 1993).
Shock Incarceration or Boot Camps
The rationale for “shock” incarceration is that exposure to the prison environment may serve as a deterrent. This is the premise that underlay the “scared straight” program in the early 1980s, even though research showed that it did not affect recidivism (Finckenauer et al., 2012). The concept of shock incarceration was reformulated in the 1990s as boot camps. Boots camps were designed as a short-term incarceration experience designed to reduce recidivism, but again evaluation studies found that the boot camps did not achieve that goal (see MacKenzie, 2006). It appears that adding incarceration does little to reduce recidivism, even when combined with short-term experiences. The previous literature, stemming from the 1980s to the 2000s, evaluating boot camp programs did not lead to a promising conclusion on their effectiveness in reducing recidivism. Sechrest (1989) performed a study in Florida assessing how well prison boot camps influenced offenders’ return-to-prison rates, technical violation rates, and absconding rates. Those who participated in the boot camp program, compared to matched nonparticipants, were not significantly different in the number of technical violations or return-to-prison rates (Sechrest, 1989). This finding is consistent with other studies that concluded that juveniles who participated in boot camps perceived their environment more positively, and were less hostile toward others, but felt they had less freedom than juveniles in traditional facilities. This led to individuals’ becoming less antisocial and less depressed (MacKenzie, Wilson, Armstrong, & Gover, 2001), but, ultimately, boot camps were ineffective in reducing recidivism. However, participants in therapeutic boot camps fared better than those in punishment-oriented boot camps (Franke et al., 2009).
Semi-Incarceration or Half-Back Programming
Semi-incarceration facilities serve to incapacitate a person but for shorter periods of time and to provide other forms of punishment (examples are residential treatment facilities, halfway houses, work release centers, and other facilities). Such facilities tend to have smaller populations (under 200 people) than the traditional jail or prison, and the facilities typically allow for more movement and independent living under the watchful eye of the state. Furthermore, these facilities offer programs that address factors that affect involvement in the justice system. Most sentences are shorter than a prison and/or jail sentence, and sometimes placement in these programs is similar to transitional release from prison or jail to assist with reentry phase. Except for those in residential treatment programs, most individuals are involved in some type of work on or off the premises of the facility.
A plethora of literature has been published assessing the effectiveness of halfway houses throughout the United States and Canada. Generally, studies have found that halfway houses tend to have differential effects depending on the risk level of the individual. Lowenkamp and Latessa (2006) found that participants in halfway houses who were lower risk tended to have higher recidivism rates than those who were higher risk. In other words, higher-risk participants of halfway houses fared better.
Day Programming, Intensive Supervision Probation, Problem-Solving Courts, and Other Intensive Community Controls
Semi-restrictive environments exercise more control over the individual in terms of restrictions that affect the psychological, spatial, or financial resources of an individual. In day programs, for significant lengths of the 24-hour day, the movements of the individual are restricted or defined. This serves to place limits on the individual while pursuing options to address substance abuse, mental illness, criminal cognitions, or other factors that affect the individual’s ability to be a productive, proactive citizen.
Intensive supervision probation/parole (ISP) is the most common type of intensive community control. ISP is sometimes used in conjunction with other forms of intermediate sanctions, such as electronic monitoring and house arrest (Marciniak, 2000), or even referrals to treatment. The effectiveness of ISP varies depending on the goal set by the program. In a review of ISP studies, Byrne (1990) found that four different goals can be identified in an ISP program: punishment, diversion, cost effectiveness, and recidivism. Petersilia and Turner (1991, 1993) studied the relationship between offenders’ being sentenced to ISP and different outcome measures (depending on the goal set). The study included 14 ISP programs that served about 2,000 offenders who were randomly assigned to either ISP or routine probation. ISP increased the number of contacts with officers and the number of drug tests. ISP resulted in more face-to-face contacts between offenders and officers (average of 5 per month, compared to 1.75 per month), and offenders underwent more drug testing (1.5 per month, compared to .4 per month), received more counseling (48% compared to 22%), and had higher levels of employment (59%, compared to 38%; Turner, Petersilia, & Deschenes, 1992). ISP did not reduce recidivism and, in some sites, ISP increased technical violations (Petersilia & Turner, 1993).
In the 1990s, problem-solving courts were developed as part of an effort to better handle drug-involved offenders. The problem-solving court is generally considered a judicial alternative, since it is administered by the court (judge), including prosecutors, defenders, treatment providers, probation officers/case managers, and coordinators. Drug-treatment courts have been shown to be effective in reducing recidivism in a number of meta-analyses and systematic reviews (Mitchell, Wilson, Eggers, & MacKenzie, 2012). The court model advances comprehensive programming that includes status hearings to monitor the progress of the individual, drug testing, drug and/or other treatment, vocational training or employment options, and a myriad of approaches to assist the individual with their drug problem.
Probation is the least restrictive form of punishment in lieu of incarceration, given that individuals remain in their own residence and are responsible for the conditions of supervision. The conditions of probation may define different ways that an individual can be restricted, even as severely as the ultimate restrictions consistent with incarceration. Since a probation sentence requires the individual to report their whereabouts daily to a third party, it also imposes other conditions. A recent study found that probation can have an average of 17 conditions (Corbett, 2016), such as sometimes including house arrest, financial penalties that restrict and often consume discretionary income (which limits the individual’s ability to pay for food and clothing), timely meetings with the probation officer, and other limitations. Drug and alcohol testing are often required.
Increasingly, curfews, house arrest, and electronic monitoring are being used for individuals on probation. Probationers participating in electronic monitoring (Gainey, Payne, & O’Toole, 2000) often have to pay for their equipment, pay for electricity and phone connection, and respond to computer signals. A recent study found that, as the number of days on electronic monitoring increased, the chance of re-arrest decreased (Gainey, Payne, & O’Toole, 2000), but other studies of electronic monitoring have mixed conclusions regarding the impact on recidivism (Bonta, Wallace-Capretta, & Rooney, 2000; Finn & Muirhead-Steves, 2002; Padgett, Bales, & Blomberg, 2006; Renzema & Mayo-Wilson, 2005).
Nature of Restrictions as a Form of Punishment
As shown above, there are a number of different strategies to enhance punishment and to allow the sanction to be tailored to the need to either treat or control the individual. While sentencing used to be about the setting (i.e., prison/jail or the community), the development and utilization of various forms of rehabilitative and social control techniques have altered the nature of sentences drastically. The degree of liberty restrictions depends on the setting, but it also depends on the psychological, spatial, and/or financial restrictions that can be imposed directly by the sentencing judge, or even by the probation/correctional system. These restrictions are collateral forms of punishment. (Note: these are separate and apart from collateral consequences, such as housing restrictions, voting restrictions, employment restrictions, and other forms of limitations on participation in civil society or the role of a citizen.) Sentences can be configured to be responsive to the needs of the individual, as well as to advance social control.
The emergence of the various conditions has transformed probation considerably. In the past, most of conditions were generally programmatic (i.e., substance abuse treatment, employment, education, etc.). But, as shown above, the advent of a variety of treatment and control conditions has transformed the probation sentence considerably. This has led to increases in various forms of direct and indirect punishments that are inherent in the probation sentence.
A number of conditions refer to improvement in the mental health and overall functioning of the individual. Special conditions may include requirements to be evaluated for, and/or participate in, treatment for mental health issues, substance abuse, and/or criminal cognitions. These conditions necessitate the person to attend to physical or mental health issues as part of their sentence. An evaluation is usually part of assessing whether the person has a preexisting condition that affects their involvement in criminal behavior, functionality as a citizen, and ability to be prosocial. Psychological treatment is considered as a means to assist the person in better understanding their own behavior (cognitions) and potential to learn new behavior, skills, or approaches to different matters (behavioral). Both evaluations and treatments are considered appropriate and are used frequently as sentencing conditions. Unless the individual is potentially a threat to him/herself, or a danger to society, sentences cannot generally require the individual to take medications (as per the due process clauses of the Fifth and Fourteenth Amendments). The individual must make their own independent decision to take medications for mental illness or substance use disorders, but the system can also use different incentive structures to encourage the use of medications or participation in behavioral therapies.
Other forms of psychological restrictions refer to the civil life of the individual. Usually being on supervision places pressure on a person, especially with more intensive reporting requirements and having to provide documentation of one’s whereabouts to a third party. Another form of psychological strain may involve the number and type of requirements for supervision—in fact, most probationers have an average of 17 conditions (Taxman, 2012), which means that the probation supervision affects many aspects of their lives. For example, probation can involve requirements to be employed, to stay away from certain friends or family members, and to perform community service (even in a place that the person may not want to be), as well as other intrusions in a person’s life. The degree of psychological strain is two-pronged: the number of requirements and the degree to which they affect daily activities, and the potential threat of being considered noncompliant and subject to revocation. The degree of psychological stress has not been measured, although there is increasing attention to this issue. In one particular example in the early years of probation programming with strict conditions, Petersilia and Deschenes (1994) found that one-third of probationers preferred jail to an intermediate sanction sentence (probation with many conditions).
More conditions refer to spatial constraints that limit the individual’s movement. These include curfews, area restrictions, requirements to be a particular place for a set period of time (i.e., for treatment, for community service, etc.), and requirements that limit interaction with friends, colleagues, or support systems. House arrest is a specific form of spatial restriction that involves total control over the areas a person can occupy. Additionally, as discussed above, there are tools that monitor the geographical location of an individual, such as electronic monitors or Global Positioning Systems, trackers on cell phones, and other technological tools. These restrictions can create “walls” in the community by placing barriers on geographical areas that one can travel to.
Being on probation, as compared to incarceration, can involve a number of financial obligations. These include probation fees, drug testing fees, mandated restitution or other fee payments, and other financial requirements that use the individual’s resources as a form of punishment. Each type of financial restriction may have a different purpose, but collectively they impose a burden and responsibility on the individual. The various forms are: restitution for the victim, probation fees for being in the community instead of being incarcerated, program fees for services, fees for court costs, punishment-specific fees (such as paying for electronic monitoring equipment), and other financial penalties (such as transaction fees, activities fees, etc.). That is, many jurisdictions have imposed fees on those who are supervised in the community, whereas an incarceration sentence does not have that type of penalty. It is quite probable that some residential programs and day programs also impose fees. One study found that the average probationer paid $1.57 per day to be on probation (where the cost per day was $1.63 for probation services which means that the probationers were basically footing the fill for their punishment) (Alper & Ruhland, 2016). Other studies have noted that the financial burdens of being on probation contribute to further involvement in the justice system and create an unequal justice system (Human Rights Watch, 2014).
Identifying Who Should Receive What Type of Sentence
Decisions about who receives what type of sentence, and what types of restrictions are included in the sentence, are generally left to the sentencing judge. Or, it could be that certain regulations define the programs, services, and components of the program. This means that the conditions and requirements may or may not be most appropriate for the person. Twenty-one states and the federal government have sentencing guidelines that define who is be incarcerated based on the person’s criminal history and offense severity. Furthermore, ten states have mandatory guidelines, while eleven states have more “voluntary” guidelines, where the judge has more discretion over the incarceration decision. The guidelines, however, are predominantly used to define the “incarcerated/not-incarcerated” decision, where the additional requirements are left to the judge, but sometimes they are used to determine the length of the sentence.
A current movement in the field is to use a risk/need assessment tool (RNA), preferably one that includes static risks and dynamic risks (needs), to inform the decisions of the sentencing judge or the probation system. That is, the RNA is promoted as an objective tool to identify which individuals need what types of controls and treatments to reduce their likelihood of participating in criminal behavior. Additionally, the RNA has the potential to identify major needs and then to relate those needs to the setting and restrictions that promote positive behavior. The risk/need framework offers the potential to consider how best to use alternatives to incarceration to promote balanced distribution of restrictions and to be sensitive to public safety.
The RNA framework includes the necessity to consider risk for future criminal justice involvement as a major premise as well as the needs of the individual. Needs can be divided into areas that affect criminal behavior and should guide the nature and type of sentencing system to respond to these needs. That is, as risk increases, so does the need for more restrictions, including the use of confinement as a tool to address risk behaviors; but, as needs increase, so should the use of psychological restrictions or semi-incarceration facilities to assist with handling risky need behaviors. Also, the type of restrictions can be tied to the risk/need profile of the individual. In Table 1 shows the application of the setting and restrictions to the risk/need profile of the individual. The conceptual model is that, the higher the risk level, the more there is a need to use confinement or semi-incarceration for the individual. Similarly, the greater the need, the greater the requirement for psychological interventions (restrictions) as part of the effort to minimize the needs of the individual.
A key to this utilization is that the type of needs of the individual has to be discerned. This means that it is important for the needs to be identified based on areas that are linked to criminal behavior, or that affect stability in the community and the completion of supervision conditions. The simplistic version of this application is that as the risk level increases, so should the number of restrictions, with more spatial restrictions for moderate- and high-risk offenders. There needs to be a cap on the restrictions, given that there is a limited human capacity to manage multiple restrictions simultaneously, and those that are devoted to cognitive or behavioral change have an even greater impact, since implicitly they require the person to make changes in related facets of their lives, such as social support networks, living arrangements, travel routes, and so on. More importantly, the focus of the attention is on obtaining gains in criminogenic needs.
Table 1. Imposition of Setting and Restrictions Based on Risk and Needs
Confinement or semi-incarceration setting tailored to psychological restrictions and spatial restrictions
Confinement or semi-incarceration setting tailored to psychological restrictions and limited spatial restrictions
Semi-incarceration or probation with tailored psychological and limited spatial restrictions
Semi-incarceration or probation with tailored psychological conditions
Probation with financial penalties
Probation with tailored psychological conditions and limited spatial restrictions
Probation with tailored psychological conditions
Probation with financial penalties
Notes: *High risk is defined as those who are a threat to public safety. This definition may require reducing the number of criminal convictions for low-level offenses (i.e., public disorder, petty theft, etc.) that may be included in some risk-assessment tools.
This framework reframes sentencing guidelines and/or practices that focus only on the incarceration-or-not dilemma. Instead, the focus should be on transforming risk/need information into a grid that redefines the incarceration dilemma. As shown in Table 1, incarceration is recommended for individuals who are high risk according to a standardized risk/need assessment tool, and this generally amounts to 20 to 25% of the offender population. The majority of the individuals are placed in community settings. Semi-confinement facilities for specialized programming (i.e., residential treatment) may be useful to assist individuals who have behavioral health problems or criminal cognitions to support the recovery process. In the end, prison or incarceration is then used only for individuals who are considered a threat to public safety or to themselves.
Justice Reinvestment Initiative
In 2010, the Bureau of Justice Assistance, with the PEW Foundation Public Safety Performance Project, launched an approach to tackle problems in the criminal justice realm. The approach, appropriately titled Justice Reinvestment Initiative (JRI), provides states with numerous means to accomplish the goal of reducing the demand for incarceration by reducing correctional spending and reinvesting through known recidivism-reducing strategies. Another, related goal is to strengthen neighborhoods with concentrations of criminal justice populations by addressing the factors that are correlated with criminal behavior, while at the same time increasing public safety.
JRI is a data-driven process to facilitate system change. Beginning with an interagency team (typically including all political perspectives), the emphasis is on using data to understand how the system works and areas where policy enhancements are needed. The process has two phases. Phase 1 includes:
– Data analysis: Sites receive intensive, on-site assistance to analyze crime, arrest, conviction, jail, prison, probation, and parole data for the preceding 5 to 10 years, including the cost effectiveness of the systems’ policies, practices, and programs.
– Policy option development: Practical, data-driven, consensus-based policies are developed to reduce spending on corrections and to focus on public safety.
– Adoption of new policies: Legislative bodies transform initiatives into active policies.1
Phase 2 includes:
– Implementation of new policies: Implementation should proceed as a deliberative change process.
– Reinvestment: The estimated money saved is reallocated to public safety strategies and programs in the community.
– Performance measurement: All sites monitor their performance and outcome measures to make sure they achieve projected outcomes and goals. The performance reports are provided to oversight communities that assess how well the initiative is doing.2
The states that are currently participating in the JRI framework include: Alabama, Alaska, Arkansas, Delaware, Georgia, Idaho, Hawaii, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Washington, and West Virginia. Those who have used JRI, or JRI policies, also include: Arizona, Connecticut, Nevada, Texas, Vermont, and Wisconsin. Collectively, 33 of the 50 states are using, or have used, some kind of JRI framework to actively affect their sentencing and justice systems.3
The common issues addressed are the factors behind prison growth and corrections spending, including: parole/probation revocations, sentencing policies sending low-risk offenders to incarceration, inefficient community supervision, and parole system processing delays and denials.4 States have responded to these policy options by implementing changes in the legislation for sentencing, as well as altering eligibility for different programs. These policies differ depending on where they’re targeted. Many sites started integrating risk and needs assessments, accountability measures, incentives for community compliance, sentencing changes, swift and certain responses to technical violations, mandatory supervision after incarceration, conflict-resolving courts, quicker and more expansive parole processes, and more inclusive reentry programs.5
Impact of JRI
A few studies have evaluated the influence that JRI and JRI policies have on the issues of the criminal justice system. The VERA Institute of Justice concluded that the judicial and probation systems are the reason for Delaware’s prison overcrowding. A majority of Delaware’s prison population consisted of those who were awaiting trial, people who were oversupervised on probation, and prisoners with long sentences without an opportunity for reduction (James & Agha, 2013). In response to these issues, Delaware drafted Senate Bill 226, requiring risk assessments to be performed and to be available to judges, and creating incentives for those who are incarcerated to complete evidence-based programs (James & Agha, 2013). The legislation allowed magistrates and judges to make precise risk-assessment decisions in sentencing people and/or selecting people for parole, and it aimed to decrease the likelihood of recidivism for those who completed the scientifically proven programs.
Another assessment was performed by the Urban Institute in their review of 17 JRI-using states. Consistent with the assessment of Delaware, they found that the largest factors driving prison population size and cost include parole and probation revocations, sentencing policies, ineffective community alternatives, and parole system delays/denials (LaVigne et al., 2014). Across the 17 states, however, a wide array of policies were put into action to target the different factors each state faced. A majority of the policies focused on performance and use of risk and needs assessments, accountability measures, credit earnings, increased use of intermediate sanctions, community-based treatment, sentencing policy changes, problem-solving courts, and revised parole system processes (LaVigne et al., 2014). Similarities exist across systems regarding the drivers of incarceration and the facilitators for changing practices.
The estimated monetary savings for the 17 states is $4.6 billion, ranging from savings of $7.7 million to $398 million over 5 years per state (LaVigne et al., 2014). All of the costs stem from the averted operating and construction costs of prisons. Additionally, as stated before, JRI policies reinvest the money saved. The Urban Institute report discusses two different types of reinvestment that occur. The first is reinvesting money that has already been saved from previous years; the second is investing money that is anticipated to be saved in future years. So far, from all 17 states, $23.7 million have been invested from previous savings and $142.1 million have been invested in anticipation of future savings (LaVigne et al., 2014). In addition to the monetary benefits, 8 of the 17 states (Arkansas, Hawaii, Louisiana, Kentucky, New Hampshire, North Carolina, Ohio, and South Carolina) reduced their prison populations within one year, and all states anticipate their prison population reductions will range from .6% to 19% (LaVigne et al., 2014).
In a similar effort, a case study of prison reductions in New York, New Jersey, Michigan, and Kansas from 1999 to 2009 revealed interesting changes in sentencing. From 1999 to 2009, New York and New Jersey experienced a 20% and 19% reduction, respectively, while Michigan experienced a 12% reduction from 2006 to 2009 and Kansas experienced a 5% reduction from 2003 to 2009 (Greene & Mauer, 2010). The different drivers of change were:
– New York
○ Revision of Rockefeller drug laws to reduce mandatory sentences and use more community-based options.
○ Identification of individuals who can be involved in drug-treatment alternatives.
○ Good time credit incentives for inmates for participating in educational and vocational training and treatment.
○ Revision of 650 Lifer Law,6 elimination of mandatory minimums for drug offenses, and restructuring of community corrections to create incentives to target “straddle-cell” cases with intermediate sanctions.7
○ Identification of lower-risk individuals for intermediate sanctions and designation of two reentry prisons to help plan for future releases.
○ Establishment of Michigan prisoner reentry initiative, which implemented local services targeting aspects that make it difficult to reenter society.
○ Revision of sentencing guidelines to use treatment for drug possession, rather than prison, and elimination of sentence enhancements for prior convictions.
○ Provision of services in community setting to reduce rule violations.
○ Allocation of funds to community programs that strengthen neighborhoods, substance abuse and mental health treatments, and housing services.
– New Jersey
○ Allowance for “open pleas” in lower-level drug-free-zone cases.8
○ Use of risk assessments for individuals going onto parole, as well as use of daily reports and electronic monitoring for parolees.
○ Establishment of regional assessment centers that allow information to be given to parole boards on whether violators should be allowed to continue on parole. (For details on all four states, see Greene & Mauer, 2010.)
The common approaches used by the four states in targeting prison overcrowding and cost include using risk assessments, revising sentencing guidelines, and expanding sentencing options.
Taxman, Pattavina, and Caudy (2014) performed hypothetical simulations using the RNR methodology9 to assess how JRI treatment policies would affect individual offenders within a prison system. Their four measures included the availability rate, the participation rate, the access rate, and the responsivity rate (percentage of offenders with a specific need who can access services for that need) for each prison. In order to assess how the measures influenced recidivism, two different analyses were performed, an outcome-oriented analysis, which tested how re-arrest was influenced by expanding access to, and effectiveness of, treatment, and a process-oriented analysis, which tested how re-incarceration was affected by improving the quality of treatments and using risk/need assessments. The outcome-oriented analysis found that the more people who are treated, the stronger the effects are going to be (for example, increasing the percentage of inmates receiving treatment from 10% to 50% decreases the recidivism rate by 8%; Taxman et al., 2014). Additionally, as more people are exposed to treatment, it becomes more frequent within the prison, leading to an increase in the quality of treatment. In conjunction with the findings for the outcome-oriented analysis, the process-oriented analysis found that using the RNR tool, alone, reduced re-incarceration by 3.4% in 9 years (Taxman et al., 2014). If the quality of treatments improved, the reduction became 6.7% (Taxman et al., 2014). Overall, the results suggest that, as part of sentencing, making treatment options more available, coupled with matching the treatment to the specific needs of the individual, not only will enhance the reduction in recidivism, but also will accelerate the time it takes for the treatment to be effective. The analyses found that applying the risk/need framework eliminated one recidivist event for every five people, whereas the incarceration model eliminated one recidivist event for every 33 people. The JRI framework enhances change in recidivism.
Case Study: Texas
Fabelo (2010) compared California to Texas in terms of how prison overcrowding is addressed. California and Texas are extremely similar in terms of the size of their prison system: as of 2008, California had 173,320 inmates, whereas Texas had 173,232 inmates. Both states were operating at or over their limit; however, California spent four times the amount that Texas spent.
Texas had problems with prison overcrowding due to long sentences and increasing intakes into the system. Consistent with the previous literature discussed, the 300% increase in Texas’s prison population from 1980 to 2005 was a direct result of probation revocations, lack of treatment and diversion programs, and low parole rates. In 2007, the state’s political officials debated on spending half a billion dollars to build and operate new prisons. However, they decided against it, and instead decided to launch the Public Safety Performance Project. Texas allocated $241 million specifically for the use of diversion and treatment programs. This amount, plus the reductions spent on the construction and operation of prisons, resulted in net savings of $443.9 million (Fabelo, 2010). The legislation Texas implemented consisted of:
– Establishing maximum caseloads of 60 probationers/parolees per officer.10
– Reducing maximum probation terms from 10 years to 5 years for drug and property offenders.
– Providing funding for counties who use progressive sanctions for violators, which included the development of semi-incarceration and residential treatment programs for those who have difficulties on probation/parole.
– Expansion of drug and specialty courts to ensure that lower-risk offenders receive treatment instead of prison.
Aside from the monetary savings, the results of the legislation primarily affected lower-risk individuals. Fabelo (2010) compared recidivism rates for offenders before the legislation went into effect, during the transition period when the legislation was being put into effect, and after the legislation went into effect. He found the recidivism rates, overall, were 29%, 26%, and 24% for the three groups, respectively; however, when he specifically looked at lower-risk offenders, the numbers differed significantly: recidivism among lower-risk offenders was 26%, 10%, and 6% for the three periods, respectively (Fabelo, 2010).
Case Study: California
In May of 2011, the Supreme Court stated that California was in violation of the Eighth Amendment, with their prisons effectively being cruel and unusual punishment. The huge overcrowding in the California prison systems resulted in the lack of proper health care for the confined individuals. In response, California passed Assembly Bills 109 and 117, referred to as the realignment policy initiative. The legislation authorized California to divert and relocate thousands of low-level, nonserious, nonviolent offenders from state prisons to local jails and probation/parole programs, to allow local authorities to manage the individuals.11 The main goal of realignment is to decrease the use of state administered prisons and reduce the size of the prison population. In 2014, the citizens of California passed a ballot initiative, Proposition 47, which downgraded the sentencing of drug possession to a misdemeanor and authorized misdemeanor sentencing for petty theft. As a result of the realignment initiative, funding from the state was provided for local communities to enhance probation and parole services to manage the individuals released early from prison, as well as enhance treatment programs. Each county could exercise its own efforts to manage the population in the community and in the county, instead of a state prison.
Turner, Fain, and Hunt (2015) examined the impact of realignment on whether individual counties made changes to their corrections systems or if they continued to rely on state prisons. Twelve counties were studied: Alameda, Fresno, Kern, Los Angeles, Orange, Riverside, Sacramento, San Bernardino, San Diego, San Francisco, Santa Clara, and Stanislaus counties. California’s prison population decreased by 20.4% from FY 2009–2010 to FY 2012–2013.12 All 12 counties experienced decreased sentences to incarceration and decreases in standing prison populations from their counties. San Francisco experienced the biggest reductions, 52.1% and 33.7%, respectively, with the smallest reductions being in Fresno—20.3% for prison admissions—and Riverside—12.8% for standing prison population (Turner et al., 2015). Turner et al. noted that the local jail population for California increased by a total of 12% from June 2011 to June 2012. Funding from realignment was also used to enhance county services for education, employment, drug treatment, and mental health treatment for those in the community setting (Turner et al., 2015). Therefore, in the early years, realignment led to larger local jail populations, but after the passage of Proposition 47 (which reduced the sentencing of drug possession and petty theft to a misdemeanor), the jail populations declined.
Did realignment affect recidivism and crime rates? It was expected that realignment would influence recidivism rates by making available more resources from the state to expand local criminal justice services and to implement effective interventions. It was also anticipated that the local communities would be more vested in addressing individual needs to reduce recidivism.13 The percentage of persons on early release from state prison (referred to as AB 109) who committed a crime and returned to prison dropped 25 points (Bird & Grattet, 2016). The decrease also resulted in a 7% reduction in new intakes to prison from parole revocations (Bird & Grattet, 2016). The overall decreases in re-arrest and reconviction rates were not as substantial, with only a 2% reduction in recidivism, while the reconviction rate decreased by 1% for felonies and .2% for misdemeanors. These results suggest that the primary objective of realignment was accomplished, with the reduced numbers of people in state prisons. And, early release from prison reduced incarceration rate; the use of a variety of local sentencing options had no impact on violent or property crimes (Sundt, Salisbury, & Harmon, 2016); in the first year after realignment there was a minor impact on auto theft, but there were no long-term effects (Sundt, Salisbury, & Harmon, 2016).
Justice Reinvestment Initiatives Internationally
Internationally, there has not been nearly as much of an effort with JRI as there has been in the United States (Fox, Albertson, & Warburton, 2011), but the effort is growing. In particular, one study (Schwartz, 2010) looked at JRI for the incarcerated members of the indigenous population in Australia, and a pilot study of JRI was done in England (Wong et al., 2013).
Schwartz (2010) examined the incarceration rates for the indigenous population in Australia. The population is imprisoned at a rate of 1,891 per 100,000, as compared to the rate of 136 per 100,000 of the non-indigenous population, and 73% of the indigenous prisoners have prior criminal justice experience (Schwartz, 2010). One of the main reasons why members of the indigenous population are so heavily concentrated in the prison system is that 25% live in remote locations, where community supervision is extremely difficult. In addition, there is very little public support for the indigenous population. They are social outcasts, and, as Schwartz (2010) states, public support is crucial for the JRI policies to work, as was shown in Kansas and in Oregon with the juvenile offender initiative (Council of State Governments Justice Center, 2010; Tucker & Cadora, 2003).14
In England, Wong et al. (2013) assessed a local justice reinvestment initiative using interviews, focus groups, and workshops. The JRI initiative they studied rewarded partners if they reduced the demand on criminal justice services by 5% for adults and 10% for juveniles. From their qualitative assessments, Wong et al. found that only one of the six sites, Manchester, experienced any benefit from the initiative. In Manchester, the project managers provided narratives to help stakeholders buy into the project, used the best available data to make decisions, and had cooperation from numerous agencies (Wong et al., 2013), which was not the case in the other areas. In the other five sites, efforts to improve the process were modeled on what worked in Manchester and included: better reinforcing incentives, better leadership, better communication of the goals and aims, better performance management, use of the best evidence available, and integration of all agencies involved (Wong et al., 2013). More work is needed to see what type of sentencing options can be developed and implemented.
In the 1990s, the concept of alternatives to incarceration or graduated sanctions gained favor as a strategy to expand sentencing between prison and probation. The push to expand the probation-plus options was aimed at enhancing the punitiveness of probation as well as giving new options to avoid incarceration. In that era, the concept of shock incarceration/boot camps, day reporting programs, probation with numerous required mandates, treatment with sanctions, and other variations of identifying needs that could be diverted to treatment programs were tested with varying success. Programs were designed and tested, but lack of funding and available resources limited the options. Even so, in the first decade of the 21st century, a survey of jails, prisons, and community corrections reported that around 10% of the correctional population could take advantage of the programming and sentencing options (Taxman, Perdoni, & Harrison, 2007). Drug treatment courts were developed for drug offenders but, even with available funding, less than 3% of the estimated drug-involved offenders participated in specialized courts (Taxman, Perdoni, & Harrsion, 2007), demonstrating the great challenges of shifting populations into an array of sentences. One drawback was that alternatives to incarceration were still considered alternatives—sending a symbolic message that they are not necessarily legitimate sanctions.
Justice reinvestment offered the political coverage to expand the use of a broad array of correctional options as sentencing alternatives, with the emphasis on legislation that altered the “incarceration/not” rules. JRI initiatives focused on reducing the intake to prison, which included downgrading the sentences for some offenders and altering how probation and parole revocations are handled—both efforts aimed at reducing intake into prison/jails (incarceration) and at using community options to address the offenders. JRI-related efforts have not drastically affected the length of sentence for most offenders, except in a few states that have downgraded sentence structures for drug offenders who are treatment eligible to semi-incarceration settings, probation with treatment, or other treatment options. Nevertheless, JRI efforts have also served to improve the acceptability of “alternatives to incarceration” as rightful sentences that align with sociopolitical dynamics in reform states. Sociopolitical acceptability lays the groundwork for longer-term use of a broader range of sentences and perhaps reduction of sentence lengths.
A pressing need is the development and maintenance of consensus among policymakers (LaVigne et al., 2014). With the quick turnover in political offices, results need to be immediate; if results do not occur quickly, funding or even the entire initiative may be revoked. While more than half of the 50 states have used JRI, and almost all have seen some kind of benefit in the short term, longer-term concerns are whether funding will be available to develop community-based services and whether individuals will be placed into these options instead of traditional incarceration.
The concept of alternatives to incarceration is morphing into sentencing options, options that are legitimate and that draw upon the broad variety of sanctions needed to adequately punish (and treat) the offenders. The proposed risk/need framework integrates objective, standardized tools into the decision-making framework so that judges and others are guided by three questions:
1. What is the likelihood that an individual will recidivate for a serious crime?
2. What underlying needs affect the individual’s involvement in criminal behavior and are they amenable to treatment?
3. What combination of restrictions is needed to facilitate punishment and to change the behavior of the individual?
Table 1 presents a vision of sentencing where the risk and needs are combined to provide the most suitable sentence, and restrictions are used interchangeably to tailor the sentence to the individual. In a nutshell, this model embraces proportionality and parsimony in the sentencing framework. In many ways, it also tries to integrate the concept of citizenship—maintaining a concern for preserving the positive role of the individual in the sentencing process. It also serves to hold the system accountable for using the least restrictive means that can beneficial to the individual. The end result is justice served.
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(6.) The 650 Lifer Law imposed life sentences for drug offenses of over 650 grams, regardless of prior offense history.
(7.) There are three types of “cells.” The most serious receives prison, the least serious receives a noncustodial penalty, and the “straddle cell” allows the judge to choose either prison or intermediate sanction.
(8.) These are cases where the individual was in possession of drugs within 100 feet of a drug-free school zone or within 500 feet of a public park, a public building, or public housing.
(9.) RNR tool stands for Risk, Needs, and Responsivity tool. It is an assessment to identify an individual’s risks and needs that need to be targeted.
(10.) Texas Legislature, House Bill 3736, “An Act Relating to Establishing Parole Officer Maximum Caseloads,” enacted 2007.
(12.) Dropped from 167,176 inmates to 133,217 inmates.
(13.) Sending revocations to prison was rescinded under realignment.
(14.) Juvenile Offender Initiative placed juveniles on community supervision and partnered with organizations like Habitat for Humanity. The initiative gained substantial public support due to actively helping the community.